11 April, 2021

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‘Extensive Methodology’ Of The OHCHR And Other Tidbits

By Malinda Seneviratne –

Malinda Seneviratne

Malinda Seneviratne

Extensive Methodology of the OHCHR

Days after the announcement that Sri Lanka had decided to deny access to the UN investigation team, the Office of High Commissioner for Human Rights (OHCHR) said it had developed extensive methodologies to deal with situations where access had been denied. Wow! Now that’s refreshing. All these years all that the OHCHR did was regurgitate lies, damned lies and statistics tossed around by people who quote people who quote people who are utterly unreliable due to multiple reasons, framed of course by the policy preferences of the USA.

The monsters they spawn!

The Bodu Bala Sena is in a fix. Having done enough chest-thumbing, arms-throwing, spewing invective and inciting people to violence, the BBS is now forced to deal with the monster it helped create. There are BBS clones using the ‘BBS’ tag sprouting in various parts of the island. The BBS says ‘not us’. Well, that may be the case, but the rhetoric is word-for-word scripted from BBS (official) speeches. Now what, BBS?

Mangala’s kurundu-polu memory

UNP condemns Aluthgama violence, says Mangala Samaraweera. Mangala has gone on to ask ‘where was the government?’ i.e. when tensions were rising and eventually spilled into violence and mayhem. Legitimate condemnation. Legitimate question. Here’s another legitimate question, this one to Mangala: ‘Where was the government and where were you when some people picked up cinnamon clubs and set upon some people who were on a peaceful march?

Mechanism to prevent escalation of violence

In the aftermath of the flare up in Aluthgama and nearby areas, several Buddhist and Muslim religious leaders backed by politicians agreed to set up a mechanism to prevent further escalation of violence, officials have said. This is all good. It is a relief indeed to know that there are not only sane people around, they have the courage to come out and take a stand. But there’s another mechanism that can prevent violence, escalation included. The Police. It cannot be that the police are too dumb to identify possible flash-points. Why is the entire law-enforcement mechanism (which also has a ‘keeping the peace’ role) so impotent? Surely, things that can be nipped at the bud should be nipped at the bud?

Mainstream Media Vs Social Media

The mainstream media failed, champions of social media say. Social media exacerbated things because you can tweet to your heart’s content and not have to account for anything, those in the mainstream media say. Nalaka Gunawardena put it best: ‘irresponsible conduct in both (mainstream and social media)…our common challenge is to contain it while allowing freedom of expression.’ Good for the reader to exercise some grey cells too, to read and read through and to read and wonder about silences.

*Malinda Seneviratne is the Chief Editor of ‘The Nation’ and his articles can be found at www.malindawords.blogspot.com

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Latest comments

  • 4
    0

    JHU is a power hungry racists outfit towards fascist state. It will never change. We as common people will never let you to drag us into tragedy. You all are responsible for the present situation. We are not afraid to say that. Gunadasa Amarasekera, Nalin Silva, Champika Ranawaka, Aturaliye Rathana, you and others.

  • 2
    0

    Malinda:
    Here are some comments to some of your comically ‘innocent’ musings:

    AND YOU ARE IMPLYING THAT EVERYTHING THE CURRENT REGIME AND ITS GOONS SAY IS GOSPEL? C’MON MAN< GIVE US A BREAK!

    SO WHY AREN”T THOSE WHOSE IMAGES ARE OUT IN PUBLIC FOR ALL TO SEE NOT TAKEN IN FOR QUESTIONING TO ASCERTAIN WHO’S TRYING TO PLAY DUMB?

    HE HAS THE COURAGE TO CALL A SPADE A SPADE AND POINT A FINGER WHERE IT DESERVES TO BE. WHAT HAVE YOU DONE TO REDUCE THE SHITLOAD OF NONSENSE THAT IS HAPPENING TO OUR COUNTRY? HAVE YOU NOT HEARD THAT AN EYE FOR AN EYE WILL MAKE THE WHOLE WORLD BLIND?

    AND WHO MAY I ASK DOES THE POLICS COME UNDER IN TODAY’S MIRACLE LAND? WHY DON’T YOU ASK HIM DIRECT?

    OH GOD THIS MADE ME PUKE….. WHAT DID ROYAL COLLEGE TEACH YOU, YOU TOTAL DISGRACE?

  • 6
    1

    1. Extensive Methodologies – Malinda doesn’t seem to understand the increasing seriousness of the UN investigations. The first was whether there were credible allegations. This is one step further. When prosecutions are done it would reach the highest level of scrutiny. When you make a complaint to the police, the first thing is the complaint should be credible – you don’t need to prove the crime at that stage. Then come the investigations by the Police and finally the prosecution. So young poet, what you are seeing is not course correction but escalation.

    2. Oooh Insidious – nice move again. By seeming to blame the BBS you sneak in a reference saying it may be the work of non-BBS actors.

    3. Why don’t you try answering your own question about the impotency of the law enforcement agencies? Is it the IGP who is standing in the way (like you tried to portray in a previous article)? Or is it someone higher up, who you are too afraid to condemn? Ask yourself intrepid poet-journalist.

    4. “You can tweet to your hearts content and not have to account for anything?” Really? There are both legal and social repercussions for those who use tweets irresponsibly. If the mainstream media is robust and fearless social media will be naturally undermined. It is the impotency and temerity of the mainstream media that provides a fillip to social media. You don’t need to “contain” media – you allow freedom of expression and you have an independent judiciary to intervene where people have been or will be affected. In Sri Lanka can you honestly say that freedom of the press and an independent judiciary exist?

    S

    • 0
      6

      Dear Sulaiman,

      Re “1. Extensive Methodologies – Malinda doesn’t seem to understand the increasing seriousness of the UN investigations. The first was whether there were credible allegations.”

      But the question is was the First Step Credible?

      If the foundation is weak the building will collapse.

      Kind Regards,
      OTC

      • 3
        0

        You [Edited out]. Have you not seen numerous images given bythe Sri Lankan army and put together by Channel_4. You think only What idiot Gota and Mahinda says is teh Gospel Truth, Hidng behind the Sinhala Buddhist Banner the Family iis robbing teh country and teh Modayas Like you praise them

        • 0
          6

          Dear Raja,

          Please limit your comment to matters raised in and arising out of mine.

          I have written about channel 4 lies and attempts by UN Special Rapporteur Philip Alston to employ Charlatans (Mr Grant Fredericks) and perjurer (Dr. Daniel Spitz) who have been discredited in US and Canadian courts and commissions in a vain attempt at proving the authenticity of ch 4.

          But the current discussion is about the Credibility of the First Step that Mr Sulaiman refers to.

          Kind Regards,
          OTC

        • 3
          0

          Raja,
          Off the cuff says that CH4 has lied . That says it all.

          For him/her what is written in these sites are lies
          http://white-flags.org/
          http://nofirezone.org/
          http://www.channel4.com/programmes/sri-lankas-killing-fields http://tamilnation.co/indictment/index.htm

          Off the cuff has not made any comment on this
          https://www.colombotelegraph.com/index.php/is-the-president-acting-against-the-country/

          • 0
            6

            Dear Anpu,

            Of course the CH4 has lied.

            Here are a few of my reasons, I hope you can counter them.

            UN Special Rapporteur Philip Alston tried to establish the claims made by CH4 in their first video. He produced “EXPERTS” Dr. Daniel Spitz and Mr Grant Fredericks to support the video.

            Dr Spitz perjured in US courts.
            Here is the Evidence.
            http://www.youtube.com/watch?v=DpL56wS_qZo

            Spitz is Cross Examined as to why he FAILED to find the Bullet or the entrance wound of a Man Killed EXECUTION STYLE with a bullet to the Head Just like in the CH4 video and he starts to stammer.

            http://www.youtube.com/watch?v=-3Oy76_nICc&NR=1

            Mr Grant Fredericks is a Charlatan who had no expertise in Photogrammetry as claimed by Alston.

            This is the evidence lead at a Canadian Commission Inquiring into the death of an immigrant Robert Dziekanski at the Vancouver airport in October 2007. Mr. Dziekanski died after being Tasered by four RCMP officers.

            Mark Hird-Rutter, a certified photogrammetrist who was called by the Braidwood Commission that inquired into the Robert Dziekanski killing to analyze the methodologies used by Fredericks, described the methodology as ‘flawed.’ Hird-Rutter said:

            The methodologies that were used in Mr. Fredericks’s report do not follow the rigours of the Science of Photogrammetry and it would be wrong to use them to determine the movement of Mr. Dziekanski either forwards or backwards.

            Another expert Duane McInnis called by the Commission also criticized Fredericks’s analysis and methodology. McInnis, a mechanical engineer and founder and senior engineer in MEA Forensic Engineers and Scientists, Canada’s largest forensic engineering and scientific firm concluded that Mr. Fredericks’ opinion (that Mr. Dziekanski moved toward the officers) is not technically supportable because of measurement errors.

            The Commissioner’s final opinion on Grant Fredericks:
            His verification methodology was flawed — while I accept that his measurement of the fixed object (the counter) showed a decrease in size as the camera zoomed out, he could make no comparable measurement of the movable object (Mr. Dziekanski’s jacket), because he was not able to measure the entire length of the jacket, as it extended below the level of the counter. I accept the opinions of Mr. Hird-Rutter and Mr. McInnis on this issue.

            Mark Hird-Rutter, a certified photogrammetrist who was called by the Braidwood Commission that inquired into the Robert Dziekanski killing to analyze the methodologies used by Fredericks, described the methodology as ‘flawed.’ Hird-Rutter said:

            The methodologies that were used in Mr. Fredericks’s report do not follow the rigours of the Science of Photogrammetry and it would be wrong to use them to determine the movement of Mr. Dziekanski either forwards or backwards.

            Another expert Duane McInnis called by the Commission also criticized Fredericks’s analysis and methodology. McInnis, a mechanical engineer and founder and senior engineer in MEA Forensic Engineers and Scientists, Canada’s largest forensic engineering and scientific firm concluded that Mr. Fredericks’ opinion (that Mr. Dziekanski moved toward the officers) is not technically supportable because of measurement errors.

            The Commissioner’s final opinion on Grant Fredericks:
            His verification methodology was flawed — while I accept that his measurement of the fixed object (the counter) showed a decrease in size as the camera zoomed out, he could make no comparable measurement of the movable object (Mr. Dziekanski’s jacket), because he was not able to measure the entire length of the jacket, as it extended below the level of the counter. I accept the opinions of Mr. Hird-Rutter and Mr. McInnis on this issue.

            He has no special expertise in determining steps from shoulder movements — without the verification referred to above,Mr. Fredericks’ opinion of three distinct steps forward is based entirely on his repetitive viewing of the three-second segment of the Pritchard video and his interpretation of Mr. Dziekanski’s changing shoulder movements. I am not persuaded that his expertise as a forensic video analyst extends to this type of human body movement. In the absence of such expertise, his opinion deserves no greater weight than the opinion of any other careful observer. I have watched this segment of the Pritchard video many dozens of times, and I have been unable to detect the three methodical step movements Mr. Fredericks described. Even if I am wrong and Mr. Dziekanski did take three distinct steps forward, Mr. Fredericks’ opinion is of questionable significance, since he repeatedly refused significance, since he repeatedly refused to estimate distance, even a distance as small as one inch.

            The PTK hospital shown on the CH4 video did not have a SINGLE LTTE WOUNDED OR DEAD. This was the ONLY hospital under LTTE control in the war front.

            All the dead and injured were in Civilian clothes.

            Where were the LTTE Dead and Wounded within the ONLY hospital available to them?

            Were they not wounded or killed?

            Anpu, you have a habit of just posting links without writing and taking responsibility for the comments. Please use links only as support to what you write as we cannot discuss the links without your original input.

            BTW, I write to protect my country from unjustified criticism and not the regime.

            Kind Regards,
            OTC

      • 5
        1

        Dear OTC,

        Thanks for the question and the willingness to engage.

        Let us look at this from basics. If a complaint made to the police doesn’t satisfy the credibility test, it still does not mean that a conviction will ensue. The conviction process will have its own stringent standards before finding a person guilty. So the example of a foundation being weak will not be relevant to this situation at all.

        In any event, if you look at the large amount of evidence that has surfaced, it is very clear that there is adequate evidence to warrant investigation. Only a person who is completely biased would say that the evidence does not warrant investigation. The videos, the photos, eye witness testimony – all of this warrants a free and fair investigation. Blank denials and getting a few acolytes to say that videos are fake doesn’t mean that we have shown that there is no need for an impartial investigation.

        Imagine that in a simple murder case that there were videos, pictures and eye witnesses – could the suspect get away simply by bringing in his own experts and witnesses to say that there he is innocent? There is a need for a proper inquiry. And that is precisely what the UN is endeavouring to do. Instead of co-operating, unfortunately, we are attempting to block the inquiry.

        I hope this helps clear any misunderstandings you had.

        Best,
        S

        • 0
          6

          Dear Sulaiman,

          Thanks for your civil response.

          My question was based on the Credibility of the UNSG’s Panel of Experts.

          Here is some food for thought from the Report produced by Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner.

          Extract

          1. Using civilians as a human buffer

          237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)

          End Extract

          Read the emphasised text with care.

          The Experts have EXONERATED the LTTE of the War Crime of using a Human Shield.

          Do you think that the reason given for doing so is Valid?

          Kind Regards,
          OTC

          • 4
            1

            Dear OTC,

            Thanks for raising a very valid question. I am not a lawyer and cannot speak for the Panel and what it means by saying, that IN LAW, the actions of the LTTE did not amount to using human shields. I admit that it is confusing and that in my mind it seems quite clear that the LTTE used human shields. But that is from a lay perspective.

            My reading of the Panel’s report is that for the offence of using human shields to be established the civilians should be moved to military targets. What happened appears to be that the civilians were taken as hostages and the military made the entire population military targets. Analysis of this offence would require more sophisticated people (at least on my side!), but I think it is adequate for the limited purpose of establishing that the Panel has been acting with credibility for the reasons mentioned below.

            I checked the report and it specifically finds credible allegations against the LTTE for the following crimes:
            (1) Violation of Common Article 3 of the Geneva Conventions for taking hostages
            (2) Killing civilians attempting to flee LTTE control
            (3) Using military equipment in the proximity of civilians
            (4) Forced recruitment of children
            (5) Forced labour
            (6) Killing of civilians through suicide attacks

            Your comment, with respect, seems to imply that the Panel had given the LTTE a clean sheet. The Panel has found credible allegations against the LTTE on some very serious charges- all of which are violations of international humanitarian laws. So I wouldn’t rush to reject the credibility of the panel.

            If your sole issue with the credibility of the panel rests on the fact that it states that in law the crime of using human shields have not been established, then I believe that you are not being fair.

            Best,

            S

            • 0
              5

              Dear Sulaiman,

              Here is the Full Definition of the ICRC IHL Rule 97 from the ICRC website http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97

              Rule 97. Human Shields

              Rule 97. The use of human shields is prohibited.

              Definition of human shields
              The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations. Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains. There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points. Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia.

              In the Review of the Indictments in the Karadžić and Mladić case, the International Criminal Tribunal for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre, as using “human shields”.

              It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.

              ……………………..

              Please note that the UNSG’s Panel has lied about what constitutes a Human Shield. There is no requirement of moving civilians to military objectives in Rule 97.

              Rule 97 requires Co-Location of Military objectives and Civilians with the specific intent of trying to prevent the targeting of those military objectives.

              This requirement has been met and we have overwhelming evidence of the LTTE Co-Locating Military objectives and Civilians in order to protect the Military targets (which includes pictures taken by Times of London photographers who overflew the NFZ with Ban Ki Moon).

              Please note that the ICRC has no law defined as a Human Buffer.

              Unquestionably the UNSG’s Panel (Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner) has connived to corrupt the IHL Rule 97 in order to absolve the LTTE of a heinous crime under International Human Rights Law. What incentive could they have possibly had to take such a huge risk? Money?

              Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner has thus forfeited all credibility as they are in all probability guilty of Graft.

              This criminal act by the UNSG’s Panel, puts the whole report that they produced under justified suspicion.

              Kind Regards,
              OTC

              • 4
                1

                Dear OTC,

                Thank you for an illuminating response.

                I have two issues with your response. First, you do not make any reference to the matter I highlighted earlier, i.e. that the Panel of Experts (POE) has found credible allegations against the LTTE for some very heinous crimes (six in number). Those crimes are no less heinous than the crime of using human shields. Thus the allegations of graft etc are clearly inappropriate. For example, if the initial investigations have revealed allegations of murder and robbery and doesn’t include criminal trespass, would it be fair to claim that the investigator is guilty of graft? Note that the POE has found credible allegations of the LTTE having killed civilians – which is the most serious crime.

                I know that this is an emotive issue and that you want to protect our country against unfair attacks. But, try to sit back and examine this dispassionately. You will see that the POE has found credible allegations against the LTTE as well and that they are not trying to whitewash them.

                My second point is on the subject of human shields. Thanks to your excerpt, I am now more convinced that the POE was correct. For instance, the following line “Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.” This is completely in line with what the POE indicated about moving the civilians to military locations. Even the conclusion, highlighted by you, states that “the use of human shields requires an intentional co-location of military objectives and civilians …. with the specific intent of trying to prevent the targeting of those military objectives.”
                I am not certain what “co-location” means, as I do not find it in a dictionary.

                However, the meaning appears to be clear – if you intentionally locate civilians near military objectives with the intention of preventing the targeting of those military objectives, you would be guilty of using human shields. How do you intentionally “co-locate”?! It would have to be by moving the people to that location. As I said earlier, there is credible allegations against the LTTE for taking hostages but they did not locate the civilians near a military target. The Govt attacked the whole lot indiscriminately. I think there appears to be legal argument against finding the LTTE guilty of the crime of using human shields, given the way in which the crime has been defined.

                But all of this is not the point. The main issue is that the POE has NOT whitewashed the LTTE and has found credible allegations. Thus quibbling over the legal soundness of one war crime and making very serious allegations is grossly unfair.

                OTC, you have shown great patience and willingness to engage. I urge you to consider whether getting emotional and hurling allegations at the Panel is useful or desirable. Should we not see that there are very credible allegations against our armed forces and that justice should be done? Can you expect justice from the courts in Sri Lanka? With respect, my friend, only those blind with misplaced patriotism and bigots will answer in the negative to those two questions.

                Peace,

                S

  • 0
    0

    This cat is out of the bag

  • 0
    5

    Dear Sulaiman,

    First let me say that debating with you have been a pleasure.

    If the Judge is corrupt Justice will be denied.
    This is an universal truth, it does not matter whether the Judges are from the UN or anywhere else (Sri Lanka included).

    What I have proved to you is undeniable.
    The UNSG’s POE of Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven R. Ratner are corrupt. It is a statement of fact and has nothing to do with emotion.

    These fraudsters must be exposed to prevent them and those behind them from becoming a law unto themselves.

    First let me clear some issues you have
    Co- location = same place.

    Re “How do you intentionally “co-locate”?! It would have to be by moving the people to that location.”

    Not necessarily, military objectives (Artillery, MBRL’s, Ammunition Dumps, Bunkers and even fighters etc) could be moved to where the civilians are. The funny part is the POE accepts that military objectives were placed amongst civilians and hospitals. Please read the report.

    What is required is the INTENT to protect the military targets. Even if Prabahkaran mingled amongst the civilians to prevent an attack on himself that will be an instance of using a Human Shield.

    Re “Should we not see that there are very credible allegations against our armed forces and that justice should be done? “

    Can you show me any established precedent?
    You wont find any, in the first world.
    Was there Justice for the Iraqi’s who were raped, burnt and tortured from US courts or the UN? Was there Justice for the Mai Lai victims from US Courts or the UN? Was there Justice for the Guantanamo torture victims from the US courts or the UN? Was there Justice for the Chagosians who were depopulated by the UK govt, from the UN?

    I have no problem in applying a Law uniformly. But selective application is not Justice, it is a denial of Justice. Remember that Justice is blind and is no respecter of position, power or status either of persons or Countries.

    Re “Can you expect justice from the courts in Sri Lanka?”

    Except in matters that have political overtones the answer is yes. This does not mean that SL was always so. We had Chief Justices who had the backbone to stand up to JRJ the first executive President.

    Now lets get back to the main issue.

    What has to be done to establish and maintain a Human Shield?

    1) Taking Civilians Hostage
    2) Holding them at Military objectives
    3) Preventing them from leaving by any means (Shooting, Killing, decapitating etc)

    Now lets look at the crimes that the experts have found the LTTE guilty of.

    (1) Violation of Common Article 3 of the Geneva Conventions for taking hostages (2) Killing civilians attempting to flee LTTE control (3) Using military equipment in the proximity of civilians (4) Forced recruitment of children (5) Forced labour (6) Killing of civilians through suicide attacks

    Items 1, 2 and 3 are just separate limbs of the graver War Crime of employing a Human Shield.

    Items 4, 5 and 6 were common knowledge which Darusman and company could not hide.

    Thus it was just eye wash, to hide the fact that they Corrupted IHL Rule 97 to exonerate the LTTE.

    Re “Your comment, with respect, seems to imply that the Panel had given the LTTE a clean sheet.”

    That’s a misconception.
    My focus was the Integrity and Impartiality of the Judges.
    They possessed neither.

    The POE Report says

    149. Authenticated footage and numerous photographs indicate that certain LTTE cadre were executed after being taken into custody by the SLA. Photographs available to the Panel show many dead bodies of cadre (or possibly civilians), some with their hands tied behind their back. On 25 August 2009, the UK-based Channel 4 News released video footage, which showed the summary execution by Sri Lankan soldiers of several prisoners with their hands tied behind their backs. The prisoners in the footage are naked and blindfolded. They are kicked and forced to cower in the mud before being shot in the head at close range. The film shows several other prisoners who appear to have been killed earlier.

    The above statement is referenced to the following footnote.

    The Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Philip Alston, concluded after consulting a video and audio expert as well as a forensic pathologist and an expert on ballistics, that “while there are some unexplained elements in the video, there are strong indications of its authenticity.” us See http://www.channe14.com/news/sri-Lanka-civil-war

    Let’s see how that stands up to scrutiny.

    1. Authenticated footage refers to CH4 video released on 5 August 2009.

    How was this AUTHENTICATED?

    UN’s Philip Alston used Dr. Daniel Spitz as the Pathologist.

    This person was caught committing Perjury in a US Court.
    http://www.youtube.com/watch?v=DpL56wS_qZo

    Spitz under Cross Examination starts to stammer

    He had no explanation as to why he could not find the ENTRANCE wound during a postmortem of a man shot in the Head, execution style. He had no explanation as to why he failed to find the bullet either. This killing was similar to the execution style killings in the CH4 video.
    http://www.youtube.com/watch?v=-3Oy76_nICc&NR=1

    Philip’s second expert was Mr. Grant Fredericks. He had no expertise in Photogrammetry as claimed by Alston.

    The Evidence given by Mr. Grant Fredericks at a Canadian Commission of inquiry (Braidwood Commission), into the Death of an immigrant Robert Dziekanski after being Tasered by four RCMP officers at the Vancouver airport in October 2007, was rejected by the Commissioner.

    The Commissioner stated,
    His verification methodology was flawed — while I accept that his measurement of the fixed object (the counter) showed a decrease in size as the camera zoomed out, he could make no comparable measurement of the movable object (Mr. Dziekanski’s jacket), because he was not able to measure the entire length of the jacket, as it extended below the level of the counter. I accept the opinions of Mr. Hird-Rutter and Mr. McInnis on this issue. He has no special expertise in determining steps from shoulder movements — without the verification referred to above,Mr. Fredericks’ opinion of three distinct steps forward is based entirely on his repetitive viewing of the three-second segment of the Pritchard video and his interpretation of Mr. Dziekanski’s changing shoulder movements. I am not persuaded that his expertise as a forensic video analyst extends to this type of human body movement. In the absence of such expertise, his opinion deserves no greater weight than the opinion of any other careful observer. I have watched this segment of the Pritchard video many dozens of times, and I have been unable to detect the three methodical step movements Mr. Fredericks described. Even if I am wrong and Mr. Dziekanski did take three distinct steps forward, Mr. Fredericks’ opinion is of questionable significance, since he repeatedly refused significance, since he repeatedly refused to estimate distance, even a distance as small as one inch.

    Mark Hird-Rutter, a certified photogrammetrist who was called by the Braidwood Commission that inquired into the Robert Dziekanski killing to analyze the methodologies used by Fredericks, described the methodology as ‘flawed.’ Hird-Rutter said:

    The methodologies that were used in Mr. Fredericks’s report do not follow the rigours of the Science of Photogrammetry and it would be wrong to use them to determine the movement of Mr. Dziekanski either forwards or backwards.

    Another expert Duane McInnis called by the Commission also criticized Fredericks’s analysis and methodology. McInnis, a mechanical engineer and founder and senior engineer in MEA Forensic Engineers and Scientists, Canada’s largest forensic engineering and scientific firm concluded that Mr. Fredericks’ opinion (that Mr. Dziekanski moved toward the officers) is not technically supportable because of measurement errors.

    Both Dr. Daniel Spitz, the Pathologist and Mr. Grant Fredericks the photogrammetrist has been JUDICIALLY condemned as Perjurors and Charlatans.

    Now where does the so called “Authenticated footage” of CH4 stand?
    It’s place should be the dust bin and not in the POE Report.

    To add insult to injury the UNSG’s Experts have been able to identify with certainty the killers in the CH4 as Sri Lankan soldiers!

    All of us saw this first video. How did they perform the identification with absolute certainty?

    Without a doubt, the UNSG’s POE of Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven R. Ratner and the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Philip Alston are corrupt to the Core.

    Kind Regards,
    OTC

  • 5
    1

    Dear OTC,

    Having a civil discussion on an emotional matter despite our differing views is refreshing.

    In summary, having read your arguments and having read the arguments of the Panel and ICRC Rules I am convinced that the Panel is correct in its interpretation. I have also noted several factual inaccuracies in your statement.

    I strongly urge you to take a step back and think whether the Panel, which appears to have considered these matters very carefully, has in fact used inadequate standards. I also urge you to refrain from alleging corruption merely because people hold against the Sri Lankan Government. If the Government has acted illegally it should face the consequences. Let there be an investigation.

    In view of your long response let me break up by reply into sections that I will attach as separate comments.

    S

    • 0
      6

      Dear Sulaiman,

      The ICRC summarizes the offense of a Human shield as follows.

      “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”

      All of that the LTTE did. Photographic evidence of these separate transgressions are available on the Internet. Even the POE agrees that they did so as separate offenses. Hence they have misinterpreted the Law to exonerate the LTTE.

      For three people to misinterpret such a clearly defined law, there would have been an incentive that they could not resist. That indicates corruption. I have gone by the facts, not tit for tat accusations.

      Hence I am sorry, I cannot agree with your view as it goes counter to the above.

      As I said before, there is no precedent for an external inquiry (which is what is envisaged), either by the UN or by another Independent External Commission. If we go by the precedent that you have given then the inquiry can only be by the Govt of Sri Lanka against the miscreant soldiers.

      All that you have written about are of US soldiers committing War Crimes in foreign countries and instead of submitting to the Laws of the country where the offense is committed, is brought back to the US and a sham investigation is held and a sham punishment is given to a low level soldier.

      There is no Command responsibility and no one within the High political and military command has been held to account. Is that what the UN envisage to do with SL?

      This is best exemplified in the My Lai and My Khe Massacres.

      Vietnamese government lists 504 killed
      Victims included men, women, children, and infants.
      Some of the women were gang-raped and their bodies mutilated.

      The US held an inquiry in the US.
      Twenty-six soldiers were charged with criminal offenses.
      Lieutenant William Calley Jr., a platoon leader in C Company, was Found guilty of killing 22 villagers and convicted.

      Punishment

      Originally given a SHAM life sentence. Which was commuted to Three and a Half years under house arrest.

      What the US did, in their Judicial process, was an INSULT not only to the dead Victims but to the whole of Humanity.

      Where was the Command Responsibility?
      Was the Commander in Chief (The US President) held responsible?
      Was the Generals who conducted the war held responsible?
      Was the Secretary of State held responsible?
      Was the US Attorney General held responsible for a Sham Judicial process?

      Answers to all above would be a No.

      An analysis of all the other cases will yield the same result.

      Will respond to your other comments soon.

      Kind Regards,
      OTC

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        Dear OTC,

        Thanks for your comment, but as I have explained very clearly under the heading “Human shields”, the Panel’s interpretation is very much in consonance with the ICRC’s notion of the offence. I mean no disrespect, but your idea of the offence of “Human Shields” is incorrect, as you conflate other war crimes with the offence of using human shields. As I have pointed out in my earlier post the offence of using Human Shields is distinct from killing civilians, taking hostages and moving weapons near citizens. This much is absolutely clear. If you can accept this proposition then understanding the Panel’s interpretation is very easy. (If you don’t accept the fact that these are distinct offences, then I am afraid further discussion on this point will be meaningless!)

        With regard to the US, we all know that they have been coy in prosecutions. But you are being selective in your criticism and changing your allegations. Originally you said that there was not a single precedent. Now you have changed it to command responsibility. You have also now stated that the trials were sham – but I have given examples of 100+ year sentences, life imprisonments etc. You cannot use one example and say that all their trials are sham. More importantly – they have prosecuted people for war crimes – not stated that there were no civilian casualties. Since they have prosecuted people the need for external investigation doesn’t arise in relation to those prosecutions. If we had found the people who committed the war crimes and prosecuted them no one would be able to point fingers at us. However, when we don’t do that and try to shelter them is it not an indication that the hierarchy has something to hide – perhaps they are worried that their direct involvement in these matters may come to light?

        Look deep within – can you answer the following questions:

        1. Do you honestly think that there were no war crimes committed in Sri Lanka by the Government forces?

        2. Do you honestly think that the persons who committed war crimes should not be tried?

        3. Do you honestly think that protecting people who have committed war crimes is ok?

        4. Do you honestly think that a fair trial could be held in Sri Lanka for a war crime, particularly, since you state that you cannot expect fairplay from the judiciary in a political matter?

        In my view, and I believe all reasonable people will agree, the answer to all the above questions is a resounding “NO”. If that is the case, isn’t an international inquiry reasonable?

        Thanks for engaging OTC – this has been a learning experience for me and I am grateful to you for that.

        Best,

        S

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          Dear Sulaiman,

          As per the ICRC a Human Shield is defined as follows.

          “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”

          Now keeping that definition in mind please explain what actions of a waring party will make them guilty of using a Human Shield?

          It will require accomplishing several things. Hence please break it down into separate steps and show how it is done.

          I will differ the answer to the rest of your comment in order to limit your response to the Human Shield issue. I will address what you have stated afterwards.

          Kind Regards,
          OTC

          • 3
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            Dear OTC,
            First things first. Do you concede that your initial idea on the offense of human Shields was incorrect, and that the war crime of using human shields is distinct from the war crimes of taking hostages, intentionally killing civilians and using military equipment in the proximity of civilians? If you don’t concede this point or you are unwilling to answer it, I’m afraid i have to draw the conclusion that you are either blinded by your perceived patriotism or you are being disingenuous.
            Best,
            S

            • 7
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              Sulaiman

              You are rest assured this plagarising liar would would use G G Ponna of 1939 as his defence.

              You had it.

            • 0
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              Dear Sulaiman,

              What my stand is explained very clearly in my post of July 4, 2014 at 3:38 pm.

              You said “but your idea of the offence of “Human Shields” is incorrect, as you conflate other war crimes with the offence of using human shields”

              That needs an explanation and for that explanation you need to provide your understanding of a Human Shield step by step.

              According to the ICRC a Human Shield requires several conditions to be met. Each of them is a war crime in itself.

              Hence the first step would be for you to explain your stand in detail as I have done.

              Kind Regards,
              OTC

              • 3
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                Dear OTC,

                Please read my comment on July 1st (9.26.p.m.) titled “Human Shields” for which you have not made any response. You have only responded to the summary of the points I have made without addressing my comments in details on each issue that you had raised.

                In that comment I have clearly explained the reasons why it is clear that you have conflated the offence of Using Human Shields with other offences. Let me restate them:

                (a) On the main issue of human shields, again there are some factual inaccuracies in your statement- you state that the use of human shields is the graver offence. I do not know how you make this statement. If at all, killing civilians directly is the graver offence and the panel has found that there are credible allegations against the LTTE in that regard. I would also recommend that you look up the definition of war crimes – http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156

                (b) It is clear from the above link that the taking of hostages is considered a GRAVE breach of the Geneva Conventions. So is wilful killing. These are listed in the first group of offences. Thereafter, you get other serious violations of International Humanitarian Law. This has been broken up into several sections as you will see. Again, the Panel has found credible allegations against the LTTE regarding matters such as recruitment of child soldiers etc. Using of human shields is listed just above the recruitment of child soldiers. The use of human shields is not up there with the taking of hostages and wilful killing which are GRAVE BREACHES of the Geneva Conventions. So I really see no justification for your statement that the use of human shields is the greater offence.

                (c) Your assertion that taking hostages, killing civilians and using military equipment in the proximity of civilians are all part of the graver offence of using human shields is again COMPLETELY INACCURATE. If you look at the link above, you will see that these are all discrete and different offences and that they are distinct from the offence of using human shields [Using military equipment in the proximity of civilians is listed In Rule 23. http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule23

                (d) If you look at Rule 23 regarding the use of military equipment in the proximity of civilians, you will see that it is RELATED to the offence of using Human Shields. It is NOT THE SAME nor is it A PART but as is obvious is related.

                (e) As I stated earlier, the reference to state practice and military manuals in Rule 97 deals with the MOVEMENT OF CIVILIANS to military objectives, even though the concluding paragraph uses that strange word “co-locate”. Rule 23 is the other side of the coin – it refers to the locating of military objectives near civilians. The Panel, clearly conscious of this distinction, has made a very succinct observation as a matter of law, that the LTTE’s acts will not come under the offence of the use of human shields but will come under the other side of the coin which is the locating of military objectives near civilians.

                (f) In summary: The offences listed by the Panel are discrete offences. They do not all form one big offence called the use of human shields. The Panel has carefully considered the provisions of the law and has correctly (in my view) held that IN LAW the LTTE could not be charged with the use of human shields as it had not moved civilians near military objectives with the intent of protecting those military objectives. In addition the Panel has found credible allegations against the LTTE against very serious offences, such as intentional killing and taking of hostages (which are described as GRAVE VIOLATIONS of the Geneva Conventions). They have also found credible allegations against the LTTE that they located military objectives near civilians.

                It is in the above context that I have stated that you have misunderstood the offence of using Human Shields. We must remember that the technical term differs from the lay use of the term and the Panel appears to have taken a legal approach to the matter.

                S

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                  Dear Sulaiman,

                  I congratulate you on the deftness shown in sidestepping the Main Issue. I can see why you are reluctant to analyse, step by step, what entails in establishing a Human Shield.

                  Rule 97. The use of human shields is prohibited. Definition of human shields The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

                  Note the words “Presence” is in the main body while the words “Or movements” are in parentheses. Hence “Presence” is the requirement and that requirement has been met and proven Re; the LTTE.

                  ICRC Rule continues…
                  Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.

                  Note the words “Most Examples” which IMPLIES that ALL examples are not included.

                  Rule 97 continues
                  In the Review of the Indictments in the Karadžić and Mladić case, the International Criminal Tribunal for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre, as using “human shields”.

                  The words used here are “physically securing or otherwise holding” which is what the LTTE did.

                  All the forgoing within the ICRC Rule 97, (explanations and definitions), have been condensed in the CONCLUDING paragraph which takes precedence over anything else.

                  It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.

                  Now let’s look at what you have written

                  You say “even though the concluding paragraph uses that strange word “co-locate”. “

                  I don’t know why it is so strange to you, when a look at the Oxford English Dictionary would have given you the following meaning.

                  co-locate, verb, (be co-located)
                  Share a location or facility with something else: a United Kingdom battalion would be co-located with the home-base battalion

                  And a look at the Mariam Webster’s would have yielded the following

                  Definition of COLOCATE, transitive verb
                  : to locate together; especially : to place (two or more units) close together so as to share common facilities.

                  Therefore you cannot ignore the “strange word” in order to give a different meaning to ICRC IHL Rule 97 because that “strange word” Co-locate” is the key.

                  (b) responded to, see the body of this comment.

                  You say “(c) Your assertion that taking hostages, killing civilians and using military equipment in the proximity of civilians are all part of the graver offence of using human shields is again COMPLETELY INACCURATE. “

                  I have already explained to you that taking hostages, killing civilians and using military equipment in the proximity of civilians are all individual offenses.

                  Hostage taking and Killing civilians do not amount to a Human shield taken separately.

                  Using military equipment in the proximity of civilians may or may not be interpreted as the war crime of using a Human Shield depending on whether the Civilian Presence was intended to deter targeting of the Military objective.

                  In the case of the LTTE, hostage taking and locating them amongst Military targets to prevent attacks on the very same military targets and Killing those civilian hostages to keep them co-located with the military targets and hence protecting the LTTE Military Equipment and their armed cadres, including Prabahkaran and the LTTE High Command from attacks by the SL forces is proven.

                  That is a clear case of a Human Shield that the UNSG’s POE ignored and Exonerated the LTTE despite the overwhelming evidence.

                  Hence there is no doubt that the UNSG’s Panel of Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven R. Ratner has succumbed to some sort of pressure, either political or monetary, that they could not resist. Whatever it is, they cannot escape the charge of Corruption.

                  Why don’t you venture to prove your assertion by analysing the individual steps required in committing the war crime of using a Human Shield?

                  Item (d) We are discussing War Crimes which are detailed here

                  Chapter 44. War Crimes

                  156. Definition of War Crimes
                  157. Jurisdiction over War Crimes
                  158. Prosecution of War Crimes
                  159. Amnesty
                  160. Statutes of Limitation
                  161. International Cooperation in Criminal Proceedings

                  Hence please do not muddy the water by straying elsewhere. I have already explained to you that using a Human Shield entail many other things that by themselves are crimes, though not war crimes. If you have analysed those several steps this would have been clear but you have consistently refused to do so. Why?

                  Item (e) already shown to be a misinterpretation by you (please see above)

                  You wrote “(f) In summary: The offences listed by the Panel are discrete offences. They do not all form one big offence called the use of human shields.”

                  You need to prove that assertion of yours by analysing the individual steps needed to qualify for the War Crime charge of Human Shield. Something that you have been avoiding to do so far.

                  If you are unwilling to do so, we can agree to disagree and move on.

                  I have every respect for you as a fellow human being and it is not my intent to hurt your feelings in anyway.

                  Kind Regards,
                  OTC

                  • 5
                    1

                    Dear OTC,

                    1. Thank you for the left handed compliment. Let me assure you that I was not trying to sidestep the issue but address it from a holistic and pragmatic perspective. Apologies for the delayed response as well – I had to give the Wimbledon and the World Cup priority!

                    2. Let us look at what you stated on June 30 at 11.40 p.m.:

                    “Now lets look at the crimes that the experts have found the LTTE guilty [sic] of.
                    (1) Violation of Common Article 3 of the Geneva Conventions for taking hostages (2) Killing civilians attempting to flee LTTE control (3) Using military equipment in the proximity of civilians (4) Forced recruitment of children (5) Forced labour (6)
                    Killing of civilians through suicide attacks

                    Items 1, 2 and 3 are just separate limbs of the graver War Crime of employing a Human Shield.”

                    3. Apart from the mistake of stating that the Panel found the LTTE “guilty”, you also stated, unequivocally, I might add, that Items 1, 2 and 3 are separate limbs of the graver war crime. On July 6th at 12.37 you modified your statement thus:
                    “I have already explained to you that taking hostages, killing civilians and using military equipment in the proximity of civilians are all individual offenses.”

                    4. In my mind when you say that some things are separate limbs of a graver offence, that means that they are necessary ingredients to constitute the graver offence. You also misrepresented (intentionally or otherwise) that somehow killing civilians and taking hostages were less serious than the use of human shields. The fact that you say that they are “just” separate limbs underscores the undervaluing of those offences as individual offences. I trust you will be forthright enough to admit that your initial idea of the offence of using Human Shields was completely misconceived.

                    5. You now state (July 6th at 12.37) that using military equipment in the proximity of civilians may or may not constitute the offence of using human shields depending on the intention – i.e. was the civilian population located there to deter the targeting of the military objective. I agree with you on this. If the civilian population is intentionally located near a military objective to protect the targeting of military objectives then that would constitute the offence of human shields.

                    6. There are two issues that one needs to look at here. First, I think that your definition of the offence of using human shields is such that it would cover all situations of taking hostages and make the two offences virtually indistinguishable. Second, the concluding paragraph of Rule 97 specifically refers to “military objectives” which is a defined term. { “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”}

                    7. The offence of taking of hostages is defined as “as the seizure or detention of a person (the hostage), combined with threatening to kill, to injure or to continue to detain the hostage, in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release of the hostage. The Elements of Crimes for the International Criminal Court uses the same definition but adds that the required behaviour of the third party could be a condition not only for the release of the hostage but also for the safety of the hostage.” ( See http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule96 .)

                    8. The questions that arises then are whether the person who is keeping the person hostage is a “Military objective”, as defined, and if he is a military objectives, whether by reason of taking a person hostage, they are “co-locating” the hostages intentionally next to the military objective, and thus committing the crime of using human shields as well. You seem to suggest that it is so.

                    9. Your definition of the offence of using human shields would imply that the mere fact of taking hostages would necessarily constitute the offence of using human shields as well – when you explicitly state (in your latest comment) that it will not unless the intention was there to locate them near a military objective. The point is that virtually every time a hostage is taken, the hostage is located near the person who has taken them hostage and that hostage would be a shield of sorts to the person who has taken the person hostage. (In fact, if they did not act as shields then there is nothing to prevent the hostages from being released!).

                    10. Note also the definition of “Military Objectives” in Rule 8 – which states “Rule 8. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” You will note that the term Military Objectives are used to refer to “objects” and not to “Combatants” or “Armed Forces” – both of which have separate definitions. So if you are relying on the concluding paragraph you have to note the restrictive use of the term. {I am of course aware that in the preceding paragraph the ICRC rule refers to military forces as well – but the point is that the concluding definition is restrictive}.

                    12. Thanks for clarifying the word co-locate. I was ignorant of its use. But your Miriam definition causes you another problem – “to locate together; especially : to place (two or more units) close together so as to share common facilities.” This would mean that both the military objective AND the civilians would have to be placed next to each other. Placing something in this context means either movement to a point or construction at a point. The Panel’s succinct point is that having taken the civilians hostages, the LTTE moved military objectives near them, but did not move the civilians to those military objectives. The definition cited by you requires both to be moved. At the time the civilians were rounded up and herded to a little strip of land there were no military objectives there. I think you have just proved the panel’s point!

                    Thank you for giving me the opportunity to read more on this area. Debating this matter civilly with you has given me insight into an area that I had no real knowledge of.

                    Sulaiman

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                      Dear Sulaiman,

                      You took the liberty of breaking up my post into several parts. I have no problem with that. However you should not expect me to start parallel discussions on your subsequent posts until the discussion on your first post is complete.

                      On July 4, 2014 at 11:27 pm I made a clear request from you to state step by step how a Human Shield can be established.

                      Here is the relevant portion of that post,

                      …. please explain what actions of a waring party will make them guilty of using a Human Shield? It will require accomplishing several things. Hence please break it down into separate steps and show how it is done.

                      Your reply on July 5, 2014 at 9:57 am avoided that request and instead stated

                      “Do you concede that your initial idea on the offense of human Shields was incorrect, and that the war crime of using human shields is distinct from the war crimes of taking hostages, intentionally killing civilians and using military equipment in the proximity of civilians?”

                      It also contained the strange ultimatum that was totally out of line.

                      “If you don’t concede this point or you are unwilling to answer it, I’m afraid i have to draw the conclusion that you are either blinded by your perceived patriotism or you are being disingenuous”

                      My response on July 5, 2014 at 1:02 pm again requested you to explain your statement made earlier, viz

                      “but your idea of the offence of “Human Shields” is incorrect, as you conflate other war crimes with the offence of using human shields”

                      I observed that your statement above needs an explanation and for that explanation you need to provide your understanding of a Human Shield step by step.

                      This step by step analysis was again avoided in you subsequent response on July 5, 2014 at 7:41 pm

                      It was this consistent avoidance that led me to respond with the following on July 6, 2014 at 12:37 pm.

                      I congratulate you on the deftness shown in sidestepping the Main Issue. I can see why you are reluctant to analyze, step by step, what entails in establishing a Human Shield.

                      Even your latest post of July 9, 2014 at 10:57 pm, avoids that step by step analysis for the third time in succession. Why?

                      For the discussion to proceed you need to show step by step what entails the establishment of a Human Shield. I do hope that you will not avoid doing so for the 4th time in succession.

                      When you list the separate steps required to establish a Human Shield, the fallacy of your current line of argument would be apparent.

                      Hope you enjoyed the matches. It is a shame that Brazil had to bow out the way it did.

                      Kind Regards,
                      OTC

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                      1

                      Dear OTC,
                      The webpage does not allow me to reply directly to your comment (probably exceeds the limit of replies to replies) hence I’m posting this comment as a reply to my own comment and as a new comment at the very end.

                      First, let us step back and look at how this discussion originated. I criticised Malinda’s article on the basis that it fails to take into account the differing stages of a preliminary investigation/ investigation/trial. You questioned the credibility of the Panel and you stated that the Panel had whitewashed the LTTE of the war crime of using Human Shields. I responded by pointing out that the Panel had found credible allegations against the LTTE for other war crimes and that it would not be fair to allege corruption when they had done so and that in any event the Panel had a point in law with regard to the offence of using Human Shields.

                      You responded by stating that some of the crimes the Panel found the LTTE guilty of [your words – not the panel’s] were only “limbs” of the “graver war crime” of using Human Shields. I explained to you that your conception of the offence of using Human Shields was completely misconceived and that each offence was distinct though some were related. I also pointed out with reference to the ICRC rules that the offences the Panel found credible allegations were more serious than the offence of using Human Shields and that therefore your allegation against the Panel was unfair. I also asked you to concede the point that you were wrong in classifying the other offences as “limbs” of the “graver” offence of using human shields. This is central to the central issue of our debate. Instead of responding to the central argument, you ask for a restatement of the offence of human shields.

                      I’m surprised at your reluctance to answer my questions and insist on my answering a question of yours which I have responded to on several occasions, the latest of which was in my comment of July 9, 2014 at 10:57 pm paragraph 5 where I state that “If the civilian population is intentionally located near a military objective to protect the targeting of military objectives then that would constitute the offence of [using] human shields.” I am not sure what step by step analysis you require. However, as a courtesy to your willingness to engage I will briefly elaborate.

                      As far as I see the offence of using human shields requires the following:
                      1. civilians or other classes of protected persons
                      2. military targets (the ICRC rule is confusing in that in its concluding paragraph it refers to Military Objectives which as a defined term refers to inanimate objects and in its body it refers to military forces – however, I think it includes both)
                      3. Both of the above (ie civilians and military targets) being co-located – meaning that they should BOTH be placed next to each other. Placing would necessarily require movement to a particular place.
                      4. The intention should be to protect those “military objectives”.

                      The Panel’s observation is in consonance with the above. It states it “did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)”. It is only if the civilians are moved to the military targets could “co-location” take place – i.e. both military targets and civilians are placed the same place.

                      This view is supported by the quote from the ICRC report which points out that most examples in military manuals and those that were subject to condemnation are where the protected persons were actually

                      The reason I addressed two other serious war crimes – the taking of hostages and using military equipment in the proximity of civilians – is because these offences need to be studied to understand the place of the offence of using human shields. The mere taking of hostages or using of military equipment in the proximity of civilians do not constitute the offence of using human shields. As I explained in my previous post your definition of using human shields makes it indistinguishable from the offence of taking hostages. The ICRC rule alludes to the fact that sometimes they are treated as such. Perhaps the interpretation of the Panel makes more sense because it treats the offences as distinct. If the two offences are indistinguishable finding credible allegations for one offence and not the other is clearly not a situation where the Panel is being corrupt!

                      What you miss, which is crucial to the essence of our discussion, is that the Panel does not deny the facts relating to what the LTTE did (or more accurately the allegations of fact) – it only states its opinion on a matter of law as an aside. Any prosecutor could take a different opinion. So if an international inquiry or prosecution follows the current investigation, the prosecutor could and should decide whether the facts unearthed constitute the offence of using human shields.

                      I think reasonable people could disagree on whether the Panel’s interpretation of the law is correct or not. However, what is clear is that the Panel has not acted in a manner that warrants serious allegation of corruption.

                      Sulaiman

                      p.s. I had to break up my answer to your comments because it would have been too long and unwieldy. I also thought it would be easier to address each distinct issue raised by you separately. You had raised several points of contention and I felt that they should all be addressed.

                      p.p.s. – alas all my teams/players lost their matches over those few days until we turned things around against SA!

                    • 0
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                      Dear Sulaiman,

                      Now let’s analyse what you wrote re the offense of using human shields.

                      Re “1. civilians or other classes of protected persons”

                      The above statement is incomplete and the following should be added as without them a Human Shield cannot be maintained. I hope you will agree. If not please explain why you disagree.

                      1.1 The protected persons are held captive (ie Hostage).

                      1.2 Maintaining that captivity by the use of force including killing of captives attempting to escape captivity.

                      The LTTE shot and killed civilians who tried to escape and they even amputated the limbs of would be escapees who got caught trying to escape. A nurse from Medicines Sans Frontiers (MSF) Ms. Anna Marie Loos gave such evidence at an ABC (Australia) interview of IDP’s at the Menik Farm.

                      Re “2. military targets (the ICRC rule is confusing in that in its concluding paragraph it refers to Military Objectives which as a defined term refers to inanimate objects and in its body it refers to military forces – however, I think it includes both)”

                      The rule includes animate and inanimate things. It refers to forces (which are animate) within the rule itself. Hence you are correct, it includes both.

                      Re “3. Both of the above (ie civilians and military targets) being co-located – meaning that they should BOTH be placed next to each other”

                      The above is a definition but the next sentence “Placing would necessarily require movement to a particular place” is an inference.

                      The definition is correct but the inference is ambiguous and is wrong in certain circumstances such as when the protected persons and the military objectives are already co-located when the protected persons are taken captive and held hostage as a Human Shield.

                      Example: UN inspectors visit a suspected chemical Armament manufacturing facility. While on inspection they uncover evidence proving the suspicion. At that moment the inspectors are taken captive and held hostage within the manufacturing facility and used as a Human Shield to prevent the destruction of the facility.

                      Please note that the party which used the UN inspectors as a Human Shield DID NOT MOVE the inspectors to the military objective.

                      Hence your statement “Placing would necessarily require movement to a particular place”

                      in conjunction with the follow up statement

                      “It is only if the civilians are moved to the military targets could “co-location” take place”

                      is wrong because you have overlooked the fact that instead of moving Civilians, the LTTE can move military objectives to where the civilians were. Which they did (see pics of NFZ and bunkers in hospitals).

                      Two objects A and B can be Co-located by moving either A to B or B to A if they are at two different places before such co-location.

                      Hence that argument of yours is erroneous.

                      You say “The Panel’s observation is in consonance with the above. It states it “did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)”

                      Where has the ICRC required a deliberate movement of civilians to military targets in rule 97?

                      It does not say anything of that sort.

                      ICRC Rule 97 does not require movement of civilians TO military targets at all.

                      It ONLY requires forcible retention of civilians AT military targets.

                      The UNSG’s POE LIED when they made that statement exonerating the LTTE from the war crime of Human Shields as what they say is a TOTAL fabrication.

                      Hence they cannot escape the charge of Corruption.

                      I have limited my response to the question of Human Shield in order to make the arguments clear. I understood why you broke up my post and I have no complaints. Only thing is you should not expect parallel discussions on the separate posts until the discussions on the first is complete.

                      You are a breath of fresh air from the rabid separatists that I usually encounter on CT who thinks personal attacks and ad hominem arguments is a replacement for logical civil debate.

                      Your searching questions are appreciated, they have helped me in my arguments.

                      Kind Regards,
                      OTC

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                      Dear OTC,

                      Thanks for your response and an excellent argument. Unfortunately I am unable to agree with it for the reasons listed below. Before elaborating on my response, I must state that I am disappointed that you are being disingenuous, in that you refuse to acknowledge that your initial idea of the offence of using human shields was plain wrong. You are yet to acknowledge that when you said that the other offences (hostage taking, killing civilians and using military equipment in the proximity of civilians were limbs of the graver offence of using human shields. You were wrong on two counts – first they are not limbs of the offence and secondly the use of human shields is not considered to be a graver offence – on the contrary it is the taking of hostages and killing of civilians that are considered to be grave breaches of the Geneva Conventions. If you admit this then your argument that the Panel was corrupt is fatally flawed. That is probably why you are sidestepping this issue. This whole discussion centres around this point – not the point of what the precise definition of human shields is or is not, which is a discussion for lawyers. In any event, as I mentioned earlier, the Panel had stated its opinion on the law, whilst stating the relevant facts. It is open to a prosecutor to charge the LTTE if he/she wishes to.

                      Nevertheless I like a good jousting so I will continue with the discussion on the use of human shields. I like your attempt at trying to set the ground to vindicate your original incorrect position on listing hostage taking (HT), killing civilians (KC) and using military equipment in the proximity of civilians (MEPC) as limbs of using Human Shields (HS). Even if you were correct on the HT (I disagree for reasons listed below), let me pre-empt your argument by stating that KC (by the person using the shields) need not necessarily happen when human shields are used. Therefore it is definitely not a limb. So too with MEPC – e.g. it is entirely possible that civilians are locked up in a nuclear facility without using any military equipment. So too with the issue of “holding captive” the human shields or hostages – again it is not necessary for the purpose of establishing HS that the shields should be held captive – they could be unaware that they are being used as shields. You are trying to equate HS with HT to justify your originally wrong idea. So your original position is wrong notwithstanding your attempt (you are as good as Malinda at trying to sneak things through☺)

                      On the question of the offence of using human shields, I think you seem to proceed on the basis of a definition that is not really given by the ICRC. The ICRC rule gives a summary of the collection of international humanitarian customary laws. Apparently International Customary law is not a very clear area. So there isn’t a single universally accepted definition on many matters and human shields are one of them. In the ICRC rule 97 the only thing that comes close to a definition is the concluding paragraph – which as I pointed out in my previous post only refers to “military objectives” which are defined in the ICRC rules as being only inanimate objects. But both you and I agree that the offence of using human shields is wider than the use of military objectives as it includes military forces as well. Therefore the only thing that comes close to a proper definition in the ICRC rule is itself flawed.

                      The next issue you need to note is that Hostage taking has been equated by some countries to the offence of using Human Shields ( see ICRC Rule 97 note 10). This explains the confusion that you have. It is not wrong per se as some countries do seem to equate the two. What is wrong is to treat the matter as settled and to proceed on the basis that the law requires the two to be equated. The point is that HS has different conceptions in International Customary Law and it is incorrect to proceed on the assumption that one perspective is correct to the exclusion of all others. The Panel has taken a different view (again based on other practice cited by the ICRC– military manuals and state condemnations) and cannot be found fault with.

                      The panel has clearly gone on the basis of the assertion in the ICRC rule about most examples in military manuals and subjects of condemnation are where civilians were moved to military objectives. A point needs to be stressed here – the reference to “most examples” referring to people being moved to military objectives does not mean that the other examples refer to moving military objectives near people – they could also refer to moving people near military forces (not objectives). In fact, if you look at the examples given in the ICRC rule you will see that they all deal with this type of situation. The ICRC rule does not give examples of any other situation – especially not the type of situations that you have raised – i.e. nuclear inspectors being taken hostage at the facility itself.

                      As I have mentioned earlier, the Panel’s interpretation gives something unique to the offence of HS as opposed to making it the same as HT. More important to our argument is the contradiction in your own argument. If the HS and HT are more or less the same as you seem to imply then the fact that the Panel has found allegations for HT then the damage in so far as the LTTE is concerned has been done and the Panel cannot be said to be soft pedalling the issue – especially since HT is expressly declared to be a grave violation and HS is not.

                      I like your example about the UN inspectors. But the point is that the word co-locate is defined (your own citation) as being “to locate together; especially : to place (two or more units) close together so as to share common facilities” requires a person to place some TWO or MORE units together. This means both will have to be placed. The definition of the verb “place” involves a positive act of placement or putting something somewhere. If something happens to be in a particular place that is not placing and hence will not be considered co-location. So your example will not constitute the offence of HS, but there will be a violation of HT.

                      Thanks again for your skilled arguments – you are as slippery as an eel (in the best possible sense!) and it is great to debate with you.

                      Sulaiman

                    • 0
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                      Dear Sulaiman,

                      You wrote “I am disappointed that you are being disingenuous, in that you refuse to acknowledge that your initial idea of the offence of using human shields was plain wrong”

                      Your disappointment is due to your own misunderstanding of my position. My stand about the POE’s interpretation exonerating the LTTE has always been consistent (I have written about it many a time). It is based on the corrupt interpretation of the ICRC definition of a Human Shield by the POE.

                      The ICRC does not require ANY movement of civilians whereas the POE claims that such movement is required by the ICRC.

                      In making that claim the POE lied blatantly.

                      If they Lied they are Corrupt.

                      They have undoubtedly Lied. Hence they are corrupt.

                      Rule 97. The use of human shields is prohibited. Definition of human shields The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

                      Kind Regards,
                      OTC

                    • 1
                      1

                      Dear OTC,

                      1. I am disappointed further. Until now you made arguments – now you simply restate positions. It appears that you remain steadfast in your refusal to:
                      (a) admit that you were wrong with regard to the definition of the offence of using human shields (HS)
                      (b) unfair in your criticism of the Panel
                      (c) address the issue at hand
                      (d) Acknowledge the numerous errors in your arguments.

                      2. To summarise you were wrong with regard to your definition of HS originally because:
                      (a) You stated that Hostage Taking (HT), killing civilians (KC) and using military equipment in the proximity of civilians (MEPC) were LIMBS of the offence of HS. This is clearly not incorrect.
                      (b) You stated that HS was the GRAVER offence. You were wrong. HT and KC are considered grave breaches of the Geneva Conventions.

                      3. Your criticism against the Panel is unfair because:
                      (a) Unlike what you said the Panel has not tried to whitewash the LTTE of a graver offence but found credible allegations for grave breaches of the Geneva Conventions. Therefore it could not be said to be trying to safeguard the LTTE.
                      (b) As I have pointed out in my previous post, the ICRC rule does not provide one comprehensive definition of the offence of HS under International Customary Law as one might find in a treaty or national legislation. It has given a collection of different views (including one which equates HT with HS, and another which refers only to HS in relation to “military objectives” which refers only to inanimate objects). The Panel has followed the idea set out in most of the examples in Military Manuals and the subject of condemnation, and stated by the ICRC Rule. Therefore the Panel has acted logically and honestly.
                      (c) The Panel’s selection of the appropriate interpretation from the different views stated in the ICRC rule makes sense, as otherwise the offence would be no different from the offence of HT. Moreover, even your definition of the word “co-locate” (from Miriam) requires placement, which necessarily requires movement. This is from your own definition. The offence of HS in law would therefore not cover a situation where nuclear inspectors are taken hostages at a nuclear facility and retained there, however much you me feel aggrieved by it! The offences there would be HT and failing to remove civilians (another offence).
                      (d) Your definition of the offence of HS essentially equates HS with HT. Even if you were correct, this would not be a ground to call the Panel corrupt as they have found credible allegations for an equivalent offence. That too for an offence that is described as a grave breach.
                      (e) Even if we accept your definition of the offence of HS (which I don’t) it is not logical to conclude that the Panel LIED. It could be mistaken as it is a question of interpretation. Therefore, it cannot be said to be corrupt.
                      (f) In any event, the Panel has not exonerated the LTTE, but simply expressed its opinion on the law in parenthesis while stating the facts. It is up to a prosecutor to make the decision. So you are wrong in stating that the Panel exonerated the LTTE.

                      4. You are dodging the real issue at hand here because:
                      (a) you refuse to acknowledge that you were wrong with regard to your original definition of HS and that consequently your criticism against the Panel is unwarranted.

                      (b) therefore my original comment about Malinda’s inability to comprehend or unwillingness to acknowledge the different roles played by the Panel of Experts and UN Investigation team and the standards expected of them remains valid.

                      5. While you have come up with some very good arguments and done a great deal of research you will note that almost every point made by you has been countered, logically and with respect. A few examples:
                      (a) You stated that the US trials were shams. I gave you examples of 100+ year sentences and life imprisonment without parole. You originally asked for a single precedent of Western prosecutions for war crimes. I gave you several. Instead of acknowledging your error you asked to give an example of command responsibility. We can’t be shifting goal posts. I did not know the meaning of the word “co-location” and I admitted it and thanked you for educating me. I cannot see why you cannot have the humility to accept your errors – after all unlike me you are just using a pseudonym.
                      (b) You stated that selective justice is no justice in the context of the Panel. Then you contradicted yourself stating that there was justice in Sri Lanka, except in political matters. Is selective justice, justice or not?!
                      (c) You also implied that we could seek justice in our courts and that we don’t need international tribunals. You also stated (bravely and honestly, I might add) that in political matters there is no justice in Sri Lanka. Surely you can’t be so naïve as to think that the war crimes charges are apolitical and that we could have justice?
                      (d) You referred to the Panel as judges. This is incorrect.
                      (e) You referred to a conviction of the LTTE by the Panel. Again incorrect – the Panel is not there to convict.
                      (f) You wrote at length about the C4 video and attacked the credibility of the experts who supported its authenticity. Your line of argument supports a trial for impeaching the credibility of experts is a matter for trial not at the pre-investigation stage.
                      (g) You indicated that some of the experts were guilty of perjury, when that was not the case.
                      (h) In any event, one of the witnesses maligned by you has even recently been praised for his professionalism. You also paraded a finding of a court that one of the experts did not have skills in Photogrammetry without showing how that is relevant to the C4 video giving the impression that photogrammetry was necessary to determine the authenticity of the C4 video. This was probably not your intentional misrepresentation – you were regurgitating government propaganda.

                      In the light of the above, I am constrained to restate my disappointment. I thought I had worthy opponent who will be willing to accept his errors. Appealing to your sense of justice and honesty I restate the questions I asked some time ago (with one additional one):

                      1. Do you honestly think that there were no war crimes committed in Sri Lanka by the Government forces?
                      2. Do you honestly think that the persons who committed war crimes should not be tried?
                      3. Do you honestly think that protecting people who have committed war crimes is ok? 4. Do you honestly think that a fair trial could be held in Sri Lanka for a war crime, particularly, since you state that you cannot expect fairplay from the judiciary in a political matter?
                      5. Do you honestly think that the Panel which found credible allegations of grave breaches of war crimes of the LTTE was corrupt?

                      In my view, and I believe all reasonable people will agree, the answer to all the above questions is a resounding “NO”. If that is the case, isn’t an international inquiry reasonable and wouldn’t it serve the cause of justice?

                      Peace,
                      Sulaiman

                    • 0
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                      Sorry for the typo:

                      Para 2(a) should read as follows:

                      (a) You stated that Hostage Taking (HT), killing civilians (KC) and using military equipment in the proximity of civilians (MEPC) were LIMBS of the offence of HS. This is clearly incorrect.

                      S

                    • 0
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                      Dear Sulaiman,

                      My opening question to you was..
                      But the question is was the First Step Credible? (June 28, 2014 at 9:27 pm)

                      After you responded my second post explained the basis of my question as follows,

                      My question was based on the Credibility of the UNSG’s Panel of Experts. (June 29, 2014 at 1:19 pm)

                      I presented you with an extract from the POE report (para 237) and asked you the following question.

                      The Experts have EXONERATED the LTTE of the War Crime of using a Human Shield. Do you think that the reason given for doing so is Valid?

                      Your response on June 29, 2014 at 7:23 pm, evaded my question by not addressing the reason given by the UNSG’s POE to exonerate the LTTE.

                      By stating “If your sole issue with the credibility of the panel rests on the fact that it states that in law the crime of using human shields have not been established, then I believe that you are not being fair” you completely sidestepped the reason given by the POE as justification for exonerating the LTTE.

                      I responded on June 29, 2014 at 11:55 pm, giving you the ICRC definition and the link at which you could verify what I wrote and stated,

                      Please note that the UNSG’s Panel has lied about what constitutes a Human Shield. There is no requirement of moving civilians to military objectives in Rule 97.

                      Your response on June 30, 2014 at 8:42 am, again avoided a straight answer regarding the reason given by the UNSG’s POE to justify exonerating the LTTE of the war crime of Human Shield.

                      As you can see from the above I have been emphasizing on the fact that although the ICRC does not require “movement of Civilians” the UNSG’s POE blatantly lied and claimed that the ICRC required “movement of civilians” for the war crime of Human Shield to be established.

                      Here is the ICRC definition and I certainly cannot find anything within the ICRC definition that supports what the UNSG’s corrupt panel says is incorporated within rule 97, “…deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)”

                      What is required by the ICRC, is the PRESCENCE of Civilians, NOT movement of civilians.

                      ICRC Rule 97. The use of human shields is prohibited. Definition of human shields The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

                      We have come full circle back to my original question, do you think that the reason given by the UNSG’s POE in exonerating the LTTE of the war crime of Human Shield, valid?

                      Now the argument ends in your favour, IF YOU CAN SHOW that the ICRC definition requires “movement of civilians” as the Primary and Only action required to establish the war crime of a Human Shield.

                      Kind Regards,
                      OTC

                    • 0
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                      Dear OTC,

                      Once again you refuse to admit to any of your errors. As they say none are so blind as those who will not see. If you are unable to accept the elementary errors that riddle your successive statements, how can one expect you to continue with a rational argument? It is ok to make mistakes in an argument – what makes it a constructive process is accepting them and proceeding from that basis.

                      I have given an answer to your question of whether the Panel’s decision was credible. Of course it is credible, because the Panel has found credible allegations of the LTTE for a crimes more “grave” than the crime that the Panel said that the LTTE could not as a matter of law be found liable.

                      Furthermore, the Panel’s opinion on the using of human shields is based on the ICRC’s Rule 97 which specifically states that “Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.” Obviously movement is required. (Before you go on to repeat your issues about the language of “most examples” please read my several previous comments explaining that).

                      You also refuse to acknowledge that there isn’t a single International Customary Law definition for the crime of using Human Shields but that there are several different state practices. The Panel has gone on the basis of “most” of those. Given that International Customary Law is created by State Practice and not by a treaty or other legislative process, the Panel’s opinion is eminently acceptable.

                      I thought I was dealing with sophisticated responses. But with the greatest of respect I must say that your arguments are becoming increasingly less persuasive. Most distressing is your persistent refusal to acknowledge the numerous errors and inconsistencies in your arguments that I have highlighted, and your refusal to answer the questions posed to you.

                      I have shown a genuine willingness to engage and to answer the challenges posed by you. It is sad that you are unable to do the same. Perhaps I should have realised that when I was dealing with an anonymous interlocutor.

                      Peace,

                      Sulaiman

                    • 0
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                      Dear Sulaiman,

                      Once again you are avoiding a direct answer, why? Feeling checkmated?

                      The UNSG’s POE claims that the ICRC rule 97 REQUIRES, “…deliberately moving civilians towards military targets to protect the latter from attacks…” in order for the war crime charge of using a Human Shield to hold.

                      Vide their claim “…..as is required by the customary definition of that war crime (Rule 97, ICRC Study)”

                      They have exonerated the LTTE of the war crime of using a Human Shield using the above SINGULAR REASON as a basis.

                      The UNSG’s POE made a FALSE claim. The ICRC does not have such a PRIMARY requirement in Rule 97, which, if not satisfied, justifies exonerating the perpetrator, of the War Crime of using a Human Shield.

                      The operative phrase within Rule 97 very clearly and unambiguously contradicts the Darusman Panel when it says, …. using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

                      The word PRESENCE is the operative word. You cannot run away from it or try to bury it, within a lot of verbiage.

                      The Darusman Panel LIED and made a False claim in order to exonerate the LTTE.

                      This was a deliberate act, resulting from some form of IRRESISTIBLE PRESSURE, either political or Monetary, to which Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner were subjected to.

                      Hence they are unquestionably Corrupt.

                      Kind Regards,
                      OTC

                    • 0
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                      Dear OTC,

                      Do you not see the irony in you stating that you will not respond to the several “extraneous” issues raised by me as they are not directly relevant and then devoting an entire post to deal with the reference to an “anonymous interlocutor”?!! According to you an “ad hominem” attack is not extraneous but related issues are!! I think that indicates that it is a strategic decision on your part to refuse to answer the questions posed by me as you have no answer to them. As I have pointed out previously this is not the only contradiction or inconsistency in your argument. It is sad as I was beginning to enjoy my debates with you. I didn’t think you’ll turn craven.

                      With regard to anonymity your argument is based on your assumption that I’m using a pseudonym. I guess that reflects the two positions accurately. I am hoping for an honest discussion and going on the basis of a forthright discussion, whilst you are hoping for the cover that the forum provides. Honesty is not what the web page gives but what you do, my friend.

                      As for the question about the Panel, all you need to do is read my post to see my answer. I reiterate that the Panel’s interpretation of movement of civilians is consistent with the ICRC Rule, particularly since it is in accordance with most of the examples of military manuals and state condemnations. Still further it accords with logic as it avoids conflating the offences of using human shields and taking of hostages. And going to the root of our argument, the fact that the Panel has found credible allegations against the LTTE for grave offences demonstrates the bona fides of the Panel (quite the converse of what you had stated). Your reference to a “Primary” requirement of the ICRC rule is a little confusing. Could it be that you are coming round to the fact that the ICRC Rule does provide different interpretations and perspectives on the offence of using Human Shields?! Another slip? You need to tighten your arguments my friend.

                      Peace,
                      Sulaiman

                      p.s. re-posting this at the bottom – it is a pain to try and navigate the posts at the top. A suggestion – wouldn’t it be clearer and easier if we continue our discussion at the bottom (particularly since no one else appears to be interested in contributing constructively to this discussion!)

                    • 0
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                      Dear Sulaiman,

                      I have posted my reply at the bottom as suggested.

                      Kind Regards,
                      OTC

              • 4
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                Dear OTC,

                Now that I have reiterated my arguments I trust you will answer my question, viz.,

                Do you concede that your initial idea on the offense of human Shields was incorrect, and that the war crime of using human shields is distinct from the war crimes of taking hostages, intentionally killing civilians and using military equipment in the proximity of civilians? If you don’t concede this point or you are unwilling to answer it, I’m afraid i have to draw the conclusion that you are either blinded by your perceived patriotism or you are being disingenuous.

                Thanks,

                S

                • 1
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                  Dear Sulaiman,

                  You should have waited for my response before making a comment of this nature. I have answered you in my comment of July 6, 2014 at 12:37 pm. Please read it and respond.

                  I have rebutted your assertions and have challenged you to analyze the war crime of “Human Shield” step by step.

                  If you are unwilling to take that challenge, I am afraid the reasons are obvious.

                  We can agree to disagree but please do not ask me to concede that the LTTE is not Guilty of the War Crime of using a Human Shield because they are Guilty of that crime. Hence exonerating them of that crime can only be explained by Corruption.

                  Unless you can prove otherwise, by analyzing the different conditions that require to be satisfied in order for a waring party to be found guilty under Rule 97 of the ICRC IHL (which you have avoided), the UNSG’s Panel of Mr. Marzuki Darusman, Ms. Yasmin Sooka and Mr. Steven R. Ratner is guilty of corruption.

                  Kind Regards,
                  OTC

                • 0
                  1

                  Dear Sulaiman,

                  I have purposely avoided addressing the extraneous issues that you raised in your previous post (July 18, 2014 at 11:56 pm) from my response of July 19, 2014 at 3:12 pm, and have kept it strictly within the confines of the discussion on the Integrity or the absence of it, in the UNSG’s Darusman Panel.

                  You wrote “Perhaps I should have realised that when I was dealing with an anonymous interlocutor”

                  That is the first sign of intellectual weakness that you have displayed during this debate that we have conducted with mutual respect. Do you think “Sulaiman” is superior to “OTC”?

                  Let’s assume that your REAL name is Arumugam Mailvaganam and you are writing as “Sulaiman”. Then you would be hiding your real identity behind a False assumed name. But that involves Deceit as you present yourself under a Tamil name which is not yours. You will have a tough time trying to establish that you are really who you claim to be, on an inherently anonymous Internet Forum!

                  Instead of OTC, I could have used M.N.I.N.Perera (which is not my name) but that would have been dishonest and I chose not to be dishonest.

                  To me (and CT readers) you are as anonymous, as OTC is to you. But there is one major difference. I am honest about my anonymity while you are dishonest. No disrespect intended.

                  Hence that “ad hominem” exposes an intellectual weakness. A person focuses on my pseudonym when she/he cannot meet arguments and illogically assumes that the name she/he uses is superior to what I use. It is advisable to focus on what I write than to speculate fruitlessly, on “names”.

                  Kind Regards,
                  OTC

                  • 0
                    0

                    ¡Ay, Caramba!

                    Oligoneuronal Thorazine Crock,
                    ___________________________

                    QQ – Do you think “Sulaiman” is superior to “OTC”? – QQ

                    Both SC/ST of Asia- Wishful thinking that the world is not in orbit.
                    ___________________________

                    QQ-Let’s assume that your REAL name is Arumugam Mailvaganam and you are writing as “Sulaiman”.-QQ
                    QQ-Instead of OTC, I could have used M.N.I.N.Perera (which is not my name) but that would have been dishonest and I chose not to be dishonest.`-QQ
                    QQ-“I am honest about my anonymity while you are dishonest.”-QQ

                    But the insipid that follows honesty as the best policy is never honest.
                    ___________________________

                    QQ- No disrespect intended. Hence that “ad hominem” exposes an intellectual weakness.-QQ

                    I don’t know! But I am not going to smell it since you 2 are school teachers 5ft tall covered from head to toe in boils and totally bald. Sar!
                    ___________________________

                    QQ-It is advisable to focus on what I write than to speculate fruitlessly, on “names”.-QQ

                    One is a (wawla) Batman and the other is a (hora) Robin now being run over by a steam roller- we have you 2 invertebrates Flatman and Ribbon!

                    Run until you get a stitch. ┌∩┐ ◣_◢ ┌∩┐

                    ▲⊙▲⊙▲⊙▲⊙▲

  • 6
    1

    1. Justice for victims of war crimes around the world

    While there has been undoubtedly inadequate action on the part of the many countries, including the US, I think you over-reached in asking for a precedent. There are many.

    (a) US Soldier Steven Green received life imprisonment without parole for the rape and murder of an Iraqi girl. (See http://content.time.com/time/nation/article/0,8599,1900389,00.html)
    (b) James P. Barker, Paul E. Cortez, Jesse V. Spielman received 90, 100 and 110 years imprisonment over rape and murder connected to the Mahmudiya killings. http://en.wikipedia.org/wiki/Mahmudiyah_killings#James_P._Barker Others received dishonourable discharges for covering up etc.
    (c) Though woefully inadequate there was one conviction – William Calley (though 26 were charged) over Mai Lai.
    (d) Staff Sergeant Robert Bales received life imprisonment without parole for the Kandahar massacre (http://en.wikipedia.org/wiki/Robert_Bales)
    (e) There are other examples as well, including the Nuremberg trials.

    The point is there is precedent. So factually your assertion is incorrect. No doubt more should be done, but there are steps being taken by the US. They have not taken up the position that there are zero civilian casualties.

  • 5
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    2. Justice in Sri Lankan courts

    With respect, I find an amusing contradiction in your arguments here. You state earlier, that selective application of justice is not justice but a denial of justice and then you state that you get justice in Sri Lanka only in matters that don’t have political overtones. In other words according to you justice is applied selectively (in matters where there are no political overtones) but you still state that there is justice!

    I strongly disagree with the idea that where justice is applied selectively there is a denial of justice. I agree with what you unwittingly concede in talking about justice in Sri Lanka. Where justice is not uniformly applied we should keep fighting to apply it uniformly – and the way to do that is not to refuse to apply justice in situations but increase pressure on the people who don’t apply it.

    Regardless of the contradiction, let us assume that what you say about our judiciary being impartial only in cases where there are no political overtones, is true. Are not the issues of war crimes political? Especially since the allegations are that they emanated from the directions given at the highest levels. If one cannot expect impartiality from our judiciary, surely it is only reasonable to expect people to look to international tribunals.

  • 5
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    3. Impartiality of judges and conviction of LTTE
    Before getting into the meat of our point of contention, a quick correction on terminology – the Panel of Experts are not judges. Second, the LTTE was NOT CONVICTED in as much as the GOSL was not convicted. The Panel only talks of credible allegations. The distinction is important as you have to bear in mind that this was just the initial report to apprise the Secretary General on the situation. This is not even an investigation. ALL THIS EXERCISE DOES IS THAT IT STATES THAT THERE ARE CREDIBLE ALLEGATIONS. What this does is establishes a basis to commence INVESTIGATION – NOT EVEN TRIAL.

  • 6
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    4. Human Shields
    (a) Thank you again for your response. It made me study this fascinating but macabre area. Now, more than ever, I am convinced that the Panel was absolutely correct in its interpretation.

    (b) On the main issue of human shields, again there are some factual inaccuracies in your statement- you state that the use of human shields is the graver offence. I do not know how you make this statement. If at all, killing civilians directly is the graver offence and the panel has found that there are credible allegations against the LTTE in that regard. I would also recommend that you look up the definition of war crimes – http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156

    (c) It is clear from the above link that the taking of hostages is considered a grave breach of the Geneva Conventions. So is wilful killing. These are listed in the first group of offences. Thereafter, you get other serious violations of International Humanitarian Law. This has been broken up into several sections as you will see. Again, the Panel has found credible allegations against the LTTE regarding matters such as recruitment of child soldiers etc. Using of human shields is listed just above the recruitment of child soldiers. The use of human shields is not up there with the taking of hostages and wilful killing. So I really see no justification for your statement that the use of human shields is the greater offence.

    (d) Your assertion that taking hostages, killing civilians and using military equipment in the proximity of civilians are all part of the graver offence of using human shields is again completely inaccurate. If you look at the link above, you will see that these are all discrete offences and that they are distinct from the offence of using human shields [Using military equipment in the proximity of civilians is listed In Rule 23. http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule23%5D

    (e) If you look at Rule 23 regarding the use of military equipment in the proximity of civilians, you will see that it is RELATED to the offence of using Human Shields. It is NOT THE SAME nor is it A PART.

    (f) As I stated earlier, the reference to state practice and military manuals in Rule 97 deals with the movement OF CIVILIANS to military objectives, even though the concluding paragraph uses that strange word “co-locate”. Rule 23 is the other side of the coin – it refers to the locating of military objectives near civilians. The Panel, clearly conscious of this distinction, has made a very succinct observation as a matter of law, that the LTTE’s acts will not come under the offence of the use of human shields.

    (g) In summary: The offences listed by the Panel are discrete offences. They do not all form one big offence called the use of human shields. The Panel has carefully considered the provisions of the law and has correctly (in my view) held that in law the LTTE could not be charged with the use of human shields as it had not moved civilians near military objectives with the intent of protecting those military objectives. In addition the Panel has found credible allegations against the LTTE against very serious offences, such as intentional killing and taking of hostages (which are described as GRAVE VIOLATIONS of the Geneva Conventions).

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    5. Impartiality of witnesses

    OTC, with great respect, I am constrained to say that you are missing the point here. As I stated earlier, it is not whether there is evidence to find a person guilty in a court of law, it is whether the evidence warrants investigation. No impartial person having viewed the Channel 4 video will say that it does not warrant even an investigation.

    Arguing on the relative merits and validity of expert witnesses is what happens at the trial stage. These are all matters for a court to decide. The police doesn’t try to look at the relative merits of differing experts. In fact, the Police usually go with what the Coroner states. You are using the wrong yardstick, my friend.

    Unfortunately, you seem to have been caught up in the Govt propaganda with regard to the persons concerned. You use the word “perjury” against some experts who had been consulted by Alston. Perjury is an offence – none of the links given by you state that these guys have been guilty of perjury. Not accepting the opinion of experts by courts happens to the best of medical practitioners and other experts. That does not mean that they are perjurers or that they are incompetent. They could make mistakes like the rest of us.

    The following issues are hardly relevant in view of what I have stated above, but it should give you some comfort:
    (a) You also state that photogrammetry is needed for the analysis by Fredericks. Photogrammetry is about measuring distances. http://en.wikipedia.org/wiki/Photogrammetry The issue in the matter that you had referred to hinged on the measurement of distances. In the C4 video the question of distances is hardly relevant.

    (b) Re Daniel Spitz, if what you say is true it is strange that in just September last year he has been praised for his professional work – see this link http://www.macombdaily.com/government-and-politics/20130906/dr-daniel-spitz-diffuses-coroner-controversy

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    Excellent comments OTC. Anyone and anything criticizing Sri Lanka suddenly becomes “esteemed” and “highly credible” and “independent” for separatist terrorist sympathizers desperate for some ammunition – despite the obvious nonsense they produce, as you’ve pointed out :D

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    Dear OTC,
    The webpage does not allow me to reply directly to your comment (probably exceeds the limit of replies to replies) hence I’m posting this comment as a reply to my own comment and as a new comment at the very end.

    First, let us step back and look at how this discussion originated. I criticised Malinda’s article on the basis that it fails to take into account the differing stages of a preliminary investigation/ investigation/trial. You questioned the credibility of the Panel and you stated that the Panel had whitewashed the LTTE of the war crime of using Human Shields. I responded by pointing out that the Panel had found credible allegations against the LTTE for other war crimes and that it would not be fair to allege corruption when they had done so and that in any event the Panel had a point in law with regard to the offence of using Human Shields.

    You responded by stating that some of the crimes the Panel found the LTTE guilty of [your words – not the panel’s] were only “limbs” of the “graver war crime” of using Human Shields. I explained to you that your conception of the offence of using Human Shields was completely misconceived and that each offence was distinct though some were related. I also pointed out with reference to the ICRC rules that the offences the Panel found credible allegations were more serious than the offence of using Human Shields and that therefore your allegation against the Panel was unfair. I also asked you to concede the point that you were wrong in classifying the other offences as “limbs” of the “graver” offence of using human shields. This is central to the central issue of our debate. Instead of responding to the central argument, you ask for a restatement of the offence of human shields.

    I’m surprised at your reluctance to answer my questions and insist on my answering a question of yours which I have responded to on several occasions, the latest of which was in my comment of July 9, 2014 at 10:57 pm paragraph 5 where I state that “If the civilian population is intentionally located near a military objective to protect the targeting of military objectives then that would constitute the offence of [using] human shields.” I am not sure what step by step analysis you require. However, as a courtesy to your willingness to engage I will briefly elaborate.

    As far as I see the offence of using human shields requires the following:
    1. civilians or other classes of protected persons
    2. military targets (the ICRC rule is confusing in that in its concluding paragraph it refers to Military Objectives which as a defined term refers to inanimate objects and in its body it refers to military forces – however, I think it includes both)
    3. Both of the above (ie civilians and military targets) being co-located – meaning that they should BOTH be placed next to each other. Placing would necessarily require movement to a particular place.
    4. The intention should be to protect those “military objectives”.

    The Panel’s observation is in consonance with the above. It states it “did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)”. It is only if the civilians are moved to the military targets could “co-location” take place – i.e. both military targets and civilians are placed the same place.

    This view is supported by the quote from the ICRC report which points out that most examples in military manuals and those that were subject to condemnation are where the protected persons were actually

    The reason I addressed two other serious war crimes – the taking of hostages and using military equipment in the proximity of civilians – is because these offences need to be studied to understand the place of the offence of using human shields. The mere taking of hostages or using of military equipment in the proximity of civilians do not constitute the offence of using human shields. As I explained in my previous post your definition of using human shields makes it indistinguishable from the offence of taking hostages. The ICRC rule alludes to the fact that sometimes they are treated as such. Perhaps the interpretation of the Panel makes more sense because it treats the offences as distinct. If the two offences are indistinguishable finding credible allegations for one offence and not the other is clearly not a situation where the Panel is being corrupt!

    What you miss, which is crucial to the essence of our discussion, is that the Panel does not deny the facts relating to what the LTTE did (or more accurately the allegations of fact) – it only states its opinion on a matter of law as an aside. Any prosecutor could take a different opinion. So if an international inquiry or prosecution follows the current investigation, the prosecutor could and should decide whether the facts unearthed constitute the offence of using human shields.

    I think reasonable people could disagree on whether the Panel’s interpretation of the law is correct or not. However, what is clear is that the Panel has not acted in a manner that warrants serious allegation of corruption.

    Sulaiman

    p.s. I had to break up my answer to your comments because it would have been too long and unwieldy. I also thought it would be easier to address each distinct issue raised by you separately. You had raised several points of contention and I felt that they should all be addressed.

    p.p.s. – alas all my teams/players lost their matches over those few days until we turned things around against SA!

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    Dear Sulaiman,

    I believe there is some confusion.

    I posted two replies to your post of July 18, 2014 at 11:56 pm.

    My first post on July 19, 2014 at 3:12 pm dealt ONLY with the subject mater under discussion, the integrity of the Darusman Panel and why they are corrupt. I filtered out the extraneous issues that you raised in that reply.

    You wrote “Your reference to a “Primary” requirement of the ICRC rule is a little confusing”

    A Primary condition is a condition that must be met compulsorily. I am surprised that it confuses you.

    Darusman and co have exonerated the LTTE from the war crime of using a Human Shield, citing One and ONLY One reason. That therefore is a PRIMARY condition that has to be compulsorily met according to the Darusman interpretation.

    This singular reason used by Darusman and Co is “…deliberately moving civilians towards military targets to protect the latter from attacks…”

    Darusman and co also claims that such a condition is embedded within the ICRC Rule 97 itself.

    Hence please quote from the ICRC Rule 97 and show that the claims made by the Corrupt Darusman, Sooka and Ratner are not lies. Then this argument ends in your favour.

    If you attempt another verbiage trip, in order to avoid a direct response, the inevitable conclusion would be that you are unable to prove your case.

    Please do quote directly from the ICRC Rule 97 in support of the corrupt UNSG’s “Expert” panel.

    Contrary to the the so called experts, the ICRC Rule 97 states “…. using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations” and OMITS any DELIBERATE MOVEMENT requirement.

    You wrote “Could it be that you are coming round to the fact that the ICRC Rule does provide different interpretations and perspectives on the offence of using Human Shields?! Another slip? You need to tighten your arguments my friend”

    That was a very naive statement given my consistent views about the Corrupt so called experts, Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner

    ……………….

    My second post on July 19, 2014 at 6:07 pm dealt ONLY with the extraneous issue that you raised about the pseudonym. I filtered out everything else from that reply.

    To me “Sulaiman” is anonymous and it does not bother me in the least what name you use. If I had written as M.N.I.N. Perera you would not have dared to make that comment.

    Neither your name nor my name, has any relevance to the subject matter. That you decided to attack it was a clear indication of intellectual weakness. “Sulaiman” is not morally superior to “Off the Cuff”.

    “M.N.I.N.Perera” is not superior to “Sulaiman” although the initials give more information about the writer than what the plain “Sulaiman” does.

    All of them are essentially anonymous. You cannot prove that you are Sulaiman and I cannot prove that I am M.N.I.N. Perera, then why raise the issue unless you thought you had a Moral superiority over me? That my friend is a mistake, you have no moral superiority.

    The irony is you asking me to trust that the name you use is your real name and not a pseudonym when you did not respect my wish to remain anonymous and be honest about my anonymity.

    All your queries will be answered One by One. That will prevent “confusions” that may arise from time to time.

    Respectfully,

    Kind Regards,
    OTC

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      This “Sulaiman” fellow seems rather dense. Maybe he lacks the attention span to read past the first few lines of the definition – he’d have to read through *gasp* two whole paragraphs to reach the concluding statement after all :D

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        Dear Siva Sankaran Sarma,

        I believe that Sulaiman has a problem with the word “presence” used by the ICRC, within rule 97.

        Kind regards,
        OTC

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    Dear OTC,

    Thanks for posting at the bottom. It makes things much easier.
    1. Language- The word “condition” is defined in the OED as follows: “Something demanded or required as a prerequisite to the granting or performance of something else; a provision, a stipulation.” In the circumstances, your definition of a “Primary” condition is redundant. A condition IS compulsory otherwise it is an option. Similarly the OED defines “requirement” (which is the word used by you originally) as “Something called for or demanded; a condition which must be complied with.” Again, your definition would be redundant when you use the phrase “Primary requirement”. Hence my confusion.

    I believed that you were using the word “primary” to mean the primary or main meaning of the ICRC rule and that you were reasonable enough to see that there could be other meanings as well. I thought you held on to your interpretation of the rule as the primary interpretation and that you were willing to admit that there were other interpretations that were valid but in your view were less tenable. I guess I was wrong in expecting you to accept the possibility of alternate interpretations on a complex rule of law!

    2. Human Shields – I have clearly answered that the Panel’s interpretation stems from the International Customary Law definition set out in the Rule. I will repost the relevant portion of the ICRC rule: “Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains.[19] There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points.[20] Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia.”
    This is what Customary Law takes into account and this is what appears to have guided the Panel. “persons [being] actually taken to military objectives”. Being actually taken is obviously movement.

    3. You refuse to deal with the fact that your argument about the Panel being corrupt is fundamentally flawed because the Panel has found credible allegations against the LTTE for graver crimes and because as I have shown repeatedly the Panel’s interpretation of the offence of Human Shields is grounded in the customary law component quoted in the ICRC Rule.

    4. The fact that you dedicated a post to deal with an extraneous issue only shows your greater preference for dealing with extraneous issues! You are willing to deal with an issue that is clearly extraneous while not willing to deal with issues that are related. Fear perhaps? No answer? Pride – because you are unwilling to admit defeat?

    5. Anonymity – my friend, you are conflating an honest approach with proof. The fact that something cannot be proved does not mean that it is a falsehood. It may or may not be true. In my case, my name may or may not be Sulaiman. In your case (unless your parents were off their mind!) your name is not Off the Cuff. In my case there is a possibility that I am being honest (verifiable through the server records) but in your case you are clearly covering your tracks. Hence, my point about an anonymous interlocutor is valid as far as you are concerned. Whether I too am anonymous is a matter that requires verification and as such no conclusion can be drawn.

    Sulaiman

    P.s. I also noted that your examples indicated that I was Tamil and that you were Sinhalese. Is that because our arguments are those “expected” by those two communities?! Why not call me Mohammed or Perera? Freudian slip?

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    Dear Sulaiman,

    You have again tried to drown, in a mass of Verbose Garbage, the key word Presence used by the ICRC, in defining the war crime of using a Human Shield. The definition is not mine. It’s the ICRC’s, please keep that in mind.

    ICRC Rule 97 – “…. using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations”

    Darusman – “…deliberately moving civilians towards military targets to protect the latter from attacks…”

    The Darusman trio further claims that the ICRC requires the above as a condition that has to be met, within it’s definition of a Human Shield!

    The UNSG’s Trio; Darusman, Sooka and Ratner made a false claim either due to Monetary or Political pressure. Hence they are UNQUESTIONABLY Corrupt.

    Nowhere does the ICRC Rule 97 say, what the corrupt Darusman Trio claims the it says.

    If you don’t agree, please quote from the ICRC Rule 97 directly, in support of the Darusman trio.

    So far you have been unable to quote from the ICRC rule 97, in support of the “deliberately moving civilians towards military targets” requirement, that the Darusman Trio claims, exists in Rule 97.

    It is because the Darusman trio LIED and INTRODUCED new words in to ICRC rule 97, corrupting it’s meaning, in order to exonerate the LTTE, from the war crime of using a Human Shield.

    The ICRC only requires the PRESENCE of civilians who are used to protect,

    a) Points
    b) Areas
    c) Military Forces

    from military operations, in order for a perpetrator to be guilty of the war crime of using a Human Shield.

    The LTTE did exactly that.

    I have kept the discussion limited to ICRC Rule 97 and it’s interpretation by the UNSG’s so called “Experts”. I hope your response will be to the point.

    Kind Regards,
    OTC

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    Dear OTC,

    Please read the portion within quotation marks in paragraph 2 of my last post. That was taken directly from the section titled “Definition of Human Shields” in the ICRC Rule. The quoted portion is the portion that sets out State practice. You will see that it uses the words “actually taken to military objectives in order to shield those objectives from attack”. I think one cannot fault the Panel for using the words “deliberately moving” – it has captured the essence.

    Most distressingly, you are missing my point. The Panel’s definition is consistent with ICRC statement on State practice which is what establishes or proves the existence of an International Customary Law rule.

    As I have mentioned earlier the ICRC rule does not have a single overarching definition that captures the offence of Human Shields clearly. The closest it gets is in the concluding paragraph where it says “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.” However, this would limit the offence to “military objectives” which are defined as inanimate objects. Therefore we know that this definition is not complete. That is why we should read the entire section on definition to understand the essence of the offence and not stick to one sentence. The Panel has done this.

    In any event, even if you rely only on the last sentence in the definition section, as I pointed out in an earlier post, the definition of “co-location” provided by YOU (“to locate together; especially : to place (two or more units) close together so as to share common facilities.”) requires the PLACEMENT of TWO OR MORE units close together. Placing two or more means someone is placing the civilians as well. It does not mean just their presence. Therefore, EVEN BASED ON YOUR OWN DEFINITION OF CO-LOCATION, the offence requires “MOVEMENT” of civilians as well.

    I note that you are still loathe to respond to the numerous other points raised despite your pledge to do so on two separate occasions. I guess it is too taxing to argue several points. It is interesting that you require me to respond to the point when all I have been doing is respond to every single point that you have raised, while you are still playing coy and steadfastly refusing to answer any of my questions!

    S.

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    Dear Sulaiman,

    Again Verbose Garbage instead of quoting directly from the definition in ICRC Rule 97 in support of the UNSG’s so called experts.

    You cannot quote from the Definition because there is nothing in it that supports the corrupt TWIST the UNSG’s experts have introduced into rule 97.

    You say “The quoted portion is the portion that sets out State practice”

    Darusman trio says “…..it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime.

    Darusman refers to the DEFINITION and not to any State Practice.
    Please do not be disingenuous.

    You say “The Panel’s definition is consistent with ICRC statement on State practice “

    Of course it is not. You are just making statements without proof. Darusman trio refers to the ICRC definition (they cannot define anything on their own) and not to any state practice. The ICRC definition contradicts what Darusman says.

    You wrote “the ICRC rule does not have a single overarching definition that captures the offence of Human Shields clearly”

    You are wrong. That’s the part you studiously skipped over. Here it is.

    Extract

    Definition of human shields
    The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.
    End extract

    (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97)

    As per the above, the ICRC only requires the PRESENCE of civilians who are used to protect,
    a) Points
    b) Areas
    c) Military Forces
    from military operations, period.

    The LTTE did exactly that.

    The concluding paragraph of rule 97 states “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives”

    You say “However, this would limit the offence to “military objectives” which are defined as inanimate objects”

    Is that why the ICRC specifically named “Military Forces” within the definition? my understanding is that Military Forces are animate objects. I hope yours is no different.

    You say “Placing two or more means someone is placing the civilians as well. It does not mean just their presence“

    You are in Colombo and your family is in London. You travel to London to be with your family. You are now Co-located with your family in London. Only you moved and your family didn’t. Do you see how childish your argument is? The ICRC definition requires ONLY the presence of civilians. It is not concerned with how that presence is achieved.

    BTW, I provided you with the dictionary definition of co-locate because you were confused by that word. (You said “I am not certain what “co-location” means, as I do not find it in a dictionary” ).

    You say “the offence requires “MOVEMENT” of civilians as well”

    ICRC does not say so because they used the phrase “using the presence (or movements)” in the definition.

    The word OR has the opposite meaning of AND.
    A and B means both are required.
    A or B means any one of them is sufficient.

    In the quoted phrase the word “presence” is not in parentheses while “movements” is within parentheses. That makes it clear that “PRESENCE” has precedence over movements.

    You say “Please read the portion within quotation marks in paragraph 2 of my last post. That was taken directly from the section titled “Definition of Human Shields” in the ICRC Rule”

    What made you SKIP over the actual Definition?
    The recurrent problem of Confusion?

    The Darusman trio refers to the ICRC definition not to anything else. Hence quote from the ICRC definition and show how the ICRC definition is in agreement with what the corrupt Darusman Trio says.

    The part “Most examples given ……………. as using “human shields”” that follows the definition is not the definition.

    The phrase “most examples” clearly indicates that All examples are not covered. Hence please do not try to be disingenuous.

    However much you try, you cannot circumscribe the phrase “using the presence (or movements) of civilians” within the ICRC’s definition of a Human Shield, that contradicts the Corrupt Darusman trio’s claim, that was used to exonerate the LTTE.

    Re “I note that you are still loathe to respond to the numerous other points raised despite your pledge to do so on two separate occasions”

    You are mistaken. I am not a fool to give you room to manipulate and play hide and seek as you have been doing so far, in defending the corrupt Darusman trio of the UNSG.

    As I stated before, all your questions will be answered AFTER the current discussion about the integrity of the UNSG’s so called Experts is over.

    Hope you will keep the discussion focused on the above till then.

    Kind Regards,
    OTC

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    Dear OTC,

    The portion quoted by you “The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.” talks only about the Geneva Conventions, Additional Protocol and the ICC statute. That, my friend, is International Treaty Law – Not International Customary Law. I suggest you read up on Wikipedia on the different types of International Law. That is why in the very next sentence – the sentence quoted by me – the ICRC talks about state practice in the form of Military Manuals and statements of condemnation. That is why the Panel refers to the “customary” definition and not the “treaty” obligation.

    The ICRC rules are rules talking about International Customary Law – NOT Treaty Law! Hence, what the ICRC says about what is stated in treaties cannot form the DEFINITION of the Customary Rule. Please read up on what the ICRC rules are about. I have spent considerable time in reading these rules thanks to you and even if you refuse to see the reasonableness of my arguments, I am the richer for having had the opportunity to read this. For that I must thank you.

    With regard to “most examples” I have already explained this point to you previously. The reference to “most examples” is relevant to establish Customary Law, because that is how Customary Law will be established – by the most consistent practice. If one or two people perform differently that will not be Customary Law. “Most” States will have to follow a rule for it to be recognised as Customary Law. Furthermore, the ICRC Rule does not give a single example of state practice that talks of the sufficiency of the “presence” of civilians to establish the offence of using Human Shields. Moreover, “most” examples could have also been used to refer to the “military objectives” part and not to the “movement” aspect.

    Moving on to the definition of Military Objectives please visit http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule8 to see for yourself the definition under Rule 8 given by the ICRC for Military Objectives. The term does not include “military forces”. You may also wish to study Rule 3 (Definition of Combatants) and Rule 4 (Definition of Armed Forces). That is why the concluding paragraph of the ICRC Rule is not an adequate overarching definition. (Note – as I said earlier the first sentence of the ICRC definition section deals with “Treaty” definitions not Customary definitions).

    I have never heard anyone say “I am co-located with my family in London”! Honestly, my friend, isn’t that a stretch? You would say I am “located” with my family. The definition you provided (and I am grateful for teaching me a new word) clearly requires TWO or more to be placed for co-location to take place. Simply placing one unit by another is not “co-location” but “location”. Whilst, you do have an excellent grasp of English, I would be grateful if you could provide legitimate authority for your use of the word “co-locate”. The definition you so kindly provided is in my view ample authority to state that it requires location of BOTH not one.

    I also think it is unreasonable that you raise different points and when I respond to them you refuse to engage on those fronts. I have tried to be fair and have engaged all your arguments. You keep alleging verbiage – but some points require nuance, my friend. I am compelled to explain in detail! I think we have allowed our egos and tempers to rise. I apologise for the sarcasm and occasional barb – we cannot further reasoned discussion if we don’t remain open and respectful.

    Peace,

    Sulaiman

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    Dear Sulaiman,

    You wrote “The ICRC rules are rules talking about International Customary Law – NOT Treaty Law! Hence, what the ICRC says about what is stated in treaties cannot form the DEFINITION of the Customary Rule”

    The Customary IHL definitions homogenizes the different state practices, Conventions, protocols and the ICRC Statute. Any definitions and Rules must be explicitly stated and identified as such. It does not allow any State or you or Darusman to create their OWN definitions using their explanatory text.

    The ICRC website that I referred you to is the Customary IHL. It sets out the Rules under which any war crime proceeding is conducted and judged. No Court can function with ambiguous rules. No court can function without explicit written Rules and Definitions. No one has the freedom to ignore the stated Definitions and to create their own.

    Hence any Panel of Inquiry that uses the ICRC IHL has to use the definitions and Rules stated in the Customary IHL. They must interpret the Rules and Definitions in tune with the Spirit of the Law. Any reference made to those Rules should be directly reproducible from within those rules and not pluck out of thin air.

    Rule 97 starts with a summary which is followed by the following paragraph.

    International and non-international armed conflicts
    In the context of international armed conflicts, this rule is set forth in the Third Geneva Convention (with respect to prisoners of war), the Fourth Geneva Convention (with respect to protected civilians) and Additional Protocol I (with respect to civilians in general).[1] Under the Statute of the International Criminal Court, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime in international armed conflicts.[2]

    [1] Third Geneva Convention, Article 23, first paragraph (cited in Vol. II, Ch. 32, § 2251); Fourth Geneva Convention, Article 28 (ibid., § 2252); Additional Protocol I, Article 51(7) (adopted by consensus) (ibid., § 2254).

    [2] ICC Statute, Article 8(2)(b)(xxiii) (ibid., § 2255).

    ……………..

    The Darusman trio states the following in their report

    237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)

    In the above they refer to “the customary definition of that war crime (Rule 97, ICRC Study)”. Where can that EXPLICIT Definition be found?

    They also claim “deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition”. Where is that statement found in a DEFINITION?

    Please keep in mind that the entire website contains the Customary International Humanrights Law.

    ……………..

    What is a Military Objective?

    You are turning the discussion towards semantics.

    You seem to be under the belief that a Military Object is an inanimate thing and excludes the living.

    This leads to the Ludicrous interpretation that an armed person waging war is not a military object and hence cannot be a military target. Then what is he? Certainly not a civilian or a civilian object.

    Thus if that person uses a Child/woman/civilian as a sand bag and fires at the opposing forces from behind that child/woman/civilian he will not be guilty of using a Human Shield! This is the Ludicrousness that you refuse to recognize.

    He has used that child/woman/civilian to Shield him from bullets. What is he guilty of?

    With that type of interpretation Prabahkaran would be a protected person even if he used a Civilian as a Sand bag (a Human Shield) to stop enemy bullets!

    Such an interpretation would be foolish if made by a layman and idiotic if made by an “Expert”.

    ………………

    State Practices

    Military Objects

    Australia’s Defence Force Manual (1994) states:
    525 – Military objectives are those persons and objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. The objective must be measured by its effect on the whole military operation or campaign and the attack should not be viewed in isolation. Military advantage includes the security of friendly forces

    Australia’s LOAC Manual (2006) states:
    5.27 The term “military objective” includes combatant members of the enemy armed forces and their military weapons, vehicles, equipment and installations.

    Belgium
    Belgium’s Law of War Manual (1983) states:
    Considered as military objectives are:
    1) Persons: combatants
    2) Objects: a) objects which by their nature, location, purpose or use make an effective contribution to military action
    and
    b) whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage
    3) Places: every defended position. This does not necessarily mean that it must be reinforced: it is sufficient that enemy troops go through it, or that it is protected by mine fields, or that its access is closed by artillery fire.

    Canada’s LOAC Manual (2001) states in its chapter on targeting:
    406. Definition of legitimate targets
    1. “Legitimate targets” include combatants, unlawful combatants and military objectives.
    2. “Military objectives” are objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage. A specific area of land may constitute a military objective.

    France’s LOAC Teaching Note (2000) states:
    Military objectives are those military units and objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage.

    Germany’s Military Manual (1992) states:
    Military objectives are armed forces – including paratroops in descent (…) but no crew members parachuting from an aircraft in distress … – and objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage

    Israel
    Israel’s Manual on the Rules of Warfare (2006) states: “A military target is any target that, if attacked, would damage the military competence/fitness of the other side.”
    The manual further states:
    A military target for attack is a target that, through its nature, content or use would make an effective contribution to the military actions of the other side, and the neutralisation thereof would give the attacker a clear military advantage. A soldier is an obvious military target, while a little girl playing on the swings in the playground is certainly not. A clear military target is, for example, an enemy position

    Italy
    Italy’s IHL Manual (1991) states:
    Direct attacks are permitted against enemy objectives whose total or partial destruction offers a definite military advantage, and, in particular, against Armed Forces and military camps, the works and military establishments, the works and the equipment for defence, deposits, offices, installations, communication lines and means that are used by Armed Forces.
    Military objectives are not only those which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage, but also a particular zone of land which would be convenient to acquire or to prohibit to the enemy

    The Military Manual (2005) of the Netherlands states: “Attacks are permissible only if directed against military targets, i.e. where total or partial destruction confers clear military advantage on the combatants.”
    The manual further states:
    0508. The term “military objective” is also defined. Military objectives are objects which:
    – by their nature, location, purpose or use make an effective contribution to military action and
    – whose total or partial destruction, capture or deactivation, in the circumstances ruling at the time, offers a definite military advantage.
    0509. Under this definition, which deals with equipment and infrastructure, it must not be forgotten, first, that the armed forces constitute a military objective. This means the combatants who belong to the armed forces, and the equipment used by them (tanks, vehicles, aircraft, etc). A non-combatant, who may not take part in hostilities, but uses a weapon, also forms a military objective.

    Russian Federation
    The Russian Federation’s Regulations on the Application of IHL (2001) states:
    military objectives include units of armed forces (personnel, weapons and military equipment), except for medical units and medical transports; objects (structures, buildings) used (ready to be used) for military purposes; other objects which by their nature, purpose, location or use make an effective contribution to military operations and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
    Military objectives are legitimate targets for attack, except for cases when such objectives belong to the category of especially dangerous objects.
    A military objective remains such even if it accommodates civilian persons

    The UK LOAC Manual (2004) states:
    5.4.1. The term “military objective” includes combatant members of the enemy armed forces and their military weapons, vehicles, equipment and installations. It may include other objects which have military value such as bridges, communications towers, electricity and refined oil production facilities.

    United States of America
    The US Air Force Pamphlet (1976) states:
    Insofar as objects are concerned, military objectives are limited to those objects which by their own nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage

    The US Naval Handbook (1995) states:
    Military objectives are combatants and those objects which, by their nature, location, purpose or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack. Military advantage may involve a variety of considerations, including the security of the attacking force

    United States of America
    The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
    § 950v. Crimes triable by military commissions
    (a) DEFINITIONS AND CONSTRUCTION. – In this section:
    (1) MILITARY OBJECTIVE. – The term “military objective” means –
    (A) combatants; </b and
    (B) those objects during an armed conflict –
    (i) which, by their nature, location, purpose, or use, effectively contribute to the opposing force’s war-fighting or war-sustaining capability; and
    (ii) the total or partial destruction, capture, or neutralization of which would constitute a definite military advantage to the attacker under the circumstances at the time of the attack

    I hope that you now understand that both animate an inanimate objects are Military Objectives and that includes .

    You wrote “I have never heard anyone say “I am co-located with my family in London”! Honestly, my friend, isn’t that a stretch?”

    Well my friend does your ignorance prove that what I wrote is wrong?

    What does Co-locate mean?
    It is a verb (be co-located). Share a location or facility with something else:

    After reaching London would you not be sharing your Family’s place of residence with them? Would you not be sharing their facilities? You moved in with them. They did not move anywhere. Yet you are now Co-located with your family.

    You wrote “You would say I am “located” with my family. The definition you provided (and I am grateful for teaching me a new word) clearly requires TWO or more to be placed for co-location to take place. Simply placing one unit by another is not “co-location” but “location”

    If you had a fight with your wife and she throws you out and you move in to your friends place would your friend be “sharing his location” with you? Would your friend be “sharing his facilities” with you? Only you moved but yet you are now co-located with your friend.

    This continued confusion makes the discussion tedious and that’s another reason to limit the discussion to a single issue at a time.

    Re “I think we have allowed our egos and tempers to rise. I apologise for the sarcasm and occasional barb – we cannot further reasoned discussion if we don’t remain open and respectful”

    Dear Sulaiman, I respect you and make it a point to write with civility to anyone. I have no ego to protect (I am anonymous). I will not hesitate to apologise if proven wrong with a logical argument (have done it before). That does not mean I am a push over, as I can respond to any ad hominem attack effectively without anger (not worth getting angry and sacrificing ones health). I apologise if I have hurt your feelings too.

    Kind Regards,
    OTC

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    Dear OTC,

    1. “The Customary IHL definitions homogenizes the different state practices, Conventions, protocols and the ICRC Statute.” – I am sorry but you are wrong here. Treaty Law and Customary Law are two distinct sources of International Law. Please see http://en.wikipedia.org/wiki/Sources_of_international_law . Sometimes Treaties “codify” custom. In those cases the Treaty represents the customary law that was in existence. Sometimes treaties go beyond “codification” and that is called “progressive development” or “legislation” (see http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0079.xml) The ICRC rules set out “Customary Law” not treaties. Please read the “Introduction” to the ICRC Rules – http://www.icrc.org/customary-ihl/eng/docs/v1_cha_in_in. You will see the rationale for the ICRC treatise on Customary Law, despite “International humanitarian treaty law [being] well developed”. Particularly relevant to our scenario is the second reason stated there –
    “This wealth of treaty law does not regulate a large proportion of today’s armed conflicts in sufficient detail. The primary reason for this is that the majority of current armed conflicts are non-international, which are subject to far fewer treaty rules than international conflicts, although their number is increasing. In fact, only a limited number of treaties apply to non-international armed conflicts, namely the Convention on Certain Conventional Weapons, as amended, the Statute of the International Criminal Court, the Ottawa Convention banning anti-personnel landmines, the Chemical Weapons Convention, the Hague Convention for the Protection of Cultural Property and its Second Protocol and, as already mentioned, Additional Protocol II and Article 3 common to the four Geneva Conventions. While common Article 3 is of fundamental importance, it only provides a rudimentary framework of minimum standards and does not contain much detail. Additional Protocol II usefully supplements common Article 3, but it is still less detailed than the rules governing international armed conflicts contained in Additional Protocol I. “

    So you will see that treaty law is different from customary law and that in the context of International Humanitarian law the ICRC rules themselves state that in so far as non-international armed conflicts go they are largely not regulated by treaty law. There is no question of homogenizing state practices and treaties – it is a question of trying to find a common thread in State practices. As the ICRC report states “State practice has to be weighed to assess whether it is sufficiently “dense” to create a rule of customary international law.[29] To establish a rule of customary international law, State practice has to be virtually uniform, extensive and representative.” http://www.icrc.org/customary-ihl/eng/docs/v1_cha_in_in

    Thus, my friend, you will see that it s STATE PRACTICE that creates Customary Law. The link I provided shows how the ICRC panel studied State Practice.

    Now you will appreciate why the Panel went with the “most examples” in Military manuals and statements of condemnation. The state practice will have to be sufficiently dense to create the rule.

    You will also appreciate that Rule 97 deals with “International Armed Conflicts” and “Non-international armed conflicts”. The Treaty provisions set out in the first line of the Definitions Section are: Third Geneva Convention, Article 23, first paragraph (ibid., § 2251); Fourth Geneva Convention, Article 28 (ibid., § 2252); Additional Protocol I, Article 12(4) (adopted by consensus) (ibid., § 2253) and Article 51(7) (ibid., § 2254); ICC Statute, Article 8(2)(b)(xxiii) (ibid., § 2255). See note 18. The opening paragraph quoted by you with added emphasis is not relevant to our scenario as they relate to INTERNATIONAL ARMED CONFLICTS.

    If you look at the introduction you will see that only Common Article 3 is applicable to non-international armed conflicts like in Sri Lanka. Common Article 3 deals with only serious crimes like Hostage Taking (which, as I keep reminding you the Panel found credible allegations against the LTTE proving that it is not biased!) and does not expressly list the crime of using Human Shields. Rule 97 specifically refers to this as well.

    That is why in the definition section Rule 97 specifically refers to most examples in Military Manuals and to objects of condemnation because it is these that constitute Customary Law. And that is why, my friend, the Panel has relied on that. They have not plucked the rules from thin air but from the text of the ICRC rule dealing with custom.

    2. [The ICRC Rules] sets out the Rules under which any war crime proceeding is conducted and judged. – Again, my friend, you are wrong. War crime proceedings will be conducted and judged according to the law under which they are established. So the ICC will follow the ICC statute. The ICTY will follow its own statute. Where they have to discuss any offence under Customary Law they may refer to the ICRC rules as a text which sets out Custom.

    3. No Court can function with ambiguous rules.- Again, you appear to be off the mark. Customary law is full of ambiguity, but apart from that even normal law is ambiguous and requires interpretation. “Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge.” http://en.wikipedia.org/wiki/Statutory_interpretation I think courts are there because of ambiguous rules – lawyers thrive on it! If rules were clear there will hardly be a reason for lawyers and judges.

    4. Thanks for your compendious interpretation of military objectives. The point is that it does not matter how the Military manuals of Canada, Australia, Germany, Israel, Italy, the Netherlands, Russia, UK and USA define the term “Military Objectives”. HOW DO THE ICRC RULES DEFINE THE TERM “MILITARY OBJECTIVES”? If a term is defined in a text and that text uses that defined term, then the definition in THAT text should be used. A hundred other usages are irrelevant. Please show me the definition in the ICRC Rules where the term “Military Objective” includes animate objects as well. The example of taking a person in front of you and firing would constitute the taking of a Hostage, which is a more serious offence. As I said in my earlier posts do not think of the human shields in the context of lay usage but in the context of the definitions under law.

    5. Co-location. You do raise a valid point that my ignorance wont make you wrong. That is why I asked you, with due deference to your proficiency in English, to provide me with some other established usage. You can’t ask me to prove a negative. If you look at the word in its business context you will find that it always means the placement of two or more. See http://en.wikipedia.org/wiki/Colocation_%28business%29 . Please provide me with an established usage of the word – say from a dictionary, which gives the usage or a reputed journal or newspaper.

    Peace,

    Sulaiman

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    Dear Sulaiman,

    I am traveling on business and this is a very short reply.

    The Thesawalami was a customary Law before the Dutch wrote it down.
    It was codified by the Dutch and it is now a WRITTEN Law.

    Re “Thanks for your compendious interpretation of military objectives. The point is that it does not matter how the Military manuals of Canada, Australia, Germany, Israel, Italy, the Netherlands, Russia, UK and USA define the term “Military Objectives”.

    That my friend is State Practice. What you are saying is that “State Practice” does not matter. Earlier you were arguing that “State Practice” decides what Customary Law is. You can’t have it both ways my friend.

    Re “HOW DO THE ICRC RULES DEFINE THE TERM “MILITARY OBJECTIVES”?”

    Where does it exclude Military Forces?
    The objective of a war is to overpower the enemy.
    You can’t do that without using military force against the enemy.

    The very first paragraph of Rule 97 states,

    International and non-international armed conflicts In the context of international armed conflicts, this rule is set forth in the Third Geneva Convention (with respect to prisoners of war), the Fourth Geneva Convention (with respect to protected civilians) and Additional Protocol I (with respect to civilians in general).[1] Under the Statute of the International Criminal Court, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime in international armed conflicts.[2]

    [1] Third Geneva Convention, Article 23, first paragraph (cited in Vol. II, Ch. 32, § 2251); Fourth Geneva Convention, Article 28 (ibid., § 2252); Additional Protocol I, Article 51(7) (adopted by consensus) (ibid., § 2254).

    [2] ICC Statute, Article 8(2)(b)(xxiii) (ibid., § 2255).

    There is a specific reference to Military Forces which is not inanimate.

    You seem to be confusing Object with Objective.

    Please also note that the references quoted by them in making the above statement are The Geneva Conventions, Protocols and the ICC statute. They have also referred to State Practices elsewhere. Thus they attempt to Homogenize all types of law within one document.

    Your wife is an object of your love.
    In that sentence the word “object” refers to your wife.
    Here is a sentence that uses the plural “objects” to refer to animate things.
    Your wife and children are objects of your love.

    The reason we are discussing ICRC Rule 97 is because the Darusman Panel refers to it specifically in their corrupt attempt at exonerating the LTTE of the War Crime of using a Human Shield.

    The reason they give is not found within Rule 97. Hence they are corrupt.

    Re “The example of taking a person in front of you and firing would constitute the taking of a Hostage”

    Sorry my friend. You are confused.
    You take a person against that person’s will and tell the authorities that you would kill that person if your demands (may be a ransom or release of prisoners or similar) are not met, is one case of hostage taking.

    When you fire at the Police from behind a wall you are using the wall as a shield. When you fire at the police from behind a bullet proof glass then you are using the bullet proof glass as a shield. When you use a Human to Shield you from bullets and fire at the police you are using that Human as a Shield.

    Hence if Prabahkaran and his LTTE fired at the Army from amongst civilians, he was using a Human Shield.

    Re “Co-location. You do raise a valid point that my ignorance wont make you wrong. That is why I asked you, with due deference to your proficiency in English, to provide me with some other established usage”

    You have not read my previous post. Specifically the following,
    It is a verb (be co-located). Share a location or facility with something else:

    That was from the Oxford Dictionary.

    You shared the Family residence and facilities in London with your wife. After the estrangement with your wife, you shared your friend’s Residence and facilities at that residence.

    In both cases it was only you who moved and got co-located, first with your family and then with your friend.

    Kind Regards,
    OTC

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    Dear OTC,

    Thanks for your reply despite your busy schedule. Possibly due to the hurried nature of your response you have not done yourself justice. Let us examine your comments:

    1. “The Thesawalami was a customary Law before the Dutch wrote it down. It was codified by the Dutch and it is now a WRITTEN Law.” – Yes. So what is your point?!! If you read the introduction to the ICRC Rules you would see that the WRITTEN LAW, i.e. Treaties, do NOT apply in full to NON-International armed conflicts. So there is no doubt that written law or Treaty Law does exist in the form of the Geneva Conventions, but it is NOT APPLICABLE to the war between the Govt. and the LTTE, except for Common Article 3. That is why the ICRC took the trouble of researching as to what the customary international law in relation to non-international armed conflicts was! In addition, Custom may have surpassed the treaty obligations and may supplement them. Therefore there may be Customary rules over and beyond the treaty rules even for International Armed Conflicts.

    2. Re – Military Objectives – “That my friend is State Practice. What you are saying is that “State Practice” does not matter. Earlier you were arguing that “State Practice” decides what Customary Law is. You can’t have it both ways my friend.” – Again, I will put down your confusion to your busy schedule. The point I was making is that the ICRC Rules specifically define the term “Military Objective”. When a term is defined in a text, you cannot take the meaning from another text. You are conflating FORM with SUBSTANCE.

    I do not say that State Practice does not matter. All I am saying is that when you cite a text, which has defined the meaning of a phrase or word, then the fact that other texts use that phrase or word in a different manner is immaterial. This is a simple thing – I really cannot see how you cannot comprehend it. If I define chairs to include tables, in interpreting a reference in my text to chairs, you must consider chairs as including tables. You cannot have recourse to some other definition which treats chairs and tables as different. My text will have to use the definition used in my text.

    In any event, if you read my posts carefully you will note that I am not disagreeing with the principle that the offence of using Human Shields should include animate objects as well as inanimate ones. My point is that you cannot rely on the last sentence in the Definition Section of Rule 97 as being a comprehensive or exclusive definition of the offence, because THAT sentence refers only to Military Objectives, which are defined in the ICRC rules as being inanimate objects. You have failed to show anything in RULE 8 that includes animate objects as well.

    My larger point is that there isn’t a single comprehensive and overarching definition of the offence of using Human Shields in International Customary Law contained in Rule 97, and that the ICRC rule captures the different shades of interpretation. The Panel has followed state practice, which is the basis of Customary International Law. Therefore the Panel’s interpretation is consonant with Rule 97.

    3. Co-locate – Again, the only examples that you provide with regard to the USAGE of the word are your own. Perhaps you are an established author or a Gratien Award winning poet, but as I am only dealing with an anonymous fellow commenter on a website, I would be grateful if you would provide the USAGE from an established source. The usage you cited previously from the Oxford Dictionary was “a United Kingdom battalion would be co-located with the home-base battalion”. That is a clear indication that the two battalions will be placed together, which requires movement of both.

    BTW are you abandoning the Miriam definition? Are you now saying that the Miriam definition is wrong, despite citing it earlier? Another flip-flop? How do you say that the ICRC used the word in the sense as described by you in the Oxford Dictionary and not in the sense described by Miriam? Are you saying that there are two possible interpretations to the word? If so could not the panel have followed one of them?

    4. You have failed to address the meat of my argument. Essentially my points are as follows:

    a. The sentence relied upon by you (i.e. the first sentence in the definition section of Rule 97) only sets out the provision in treaties – NOT in Customary International Law (CIL)
    b. Treaty obligations are distinct from CIL obligations, though Treaties may codify custom.
    c. The ICRC Rules themselves point out that the several treaty obligations don’t adequately cover NON-International Armed Conflicts. Hence the need for research into CIL on IHL obligations.
    d. The Sri Lankan conflict was a NON International Armed Conflict.
    e. The ICRC Rule 97 sets out the different shades of opinion on the offence of using Human Shields and does not provide one single and universally accepted definition under CIL.
    f. The Panel has followed a definition of the offence that is consistent with State Practice as set out by Rule 97.
    g. State Practice is the defining feature of CIL.
    h. Therefore the Panel’s interpretation is sound, reasonable and just.
    i. Therefore the Panel cannot be said to be corrupt on that ground.
    j. Even if the Panel were wrong in its interpretation it has set out the facts and has stated its opinion on the law. Therefore it is open to a prosecutor to take a different opinion. Again the Panel is not corrupt.
    k. Even if the Panel were wrong in its interpretation of the offence of Human Shields, it has found credible allegations against the LTTE for the offence of Hostage Taking, which is graver offence. Therefore the Panel could not be said to be biased or corrupt.

    Peace,

    Sulaiman

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    Dear Sulaiman,

    The reason we are discussing the ICRC is because the UN Sec Gen’s Expert Panel thought it fit to refer to it and not because the ICRC has the power to pass any laws that bind States. The ICRC is not a UN body but has an Observer status at the UN. It is a private Swiss institution, subject to the Swiss Civil Code.

    On the other hand, the International Criminal Court and the United Nations has signed an agreement governing their institutional relationship, which allows the ICC to try individuals for crimes within its jurisdiction, without the need for a special mandate from the United Nations, though the ICC is a Non UN independent body.

    The ICC was set up by the 1998 Rome Statute and 122 States are currently party to it. Any one of those States can ask the ICC to carry out an investigation. A non-State Party can accept its jurisdiction for crimes committed in its territory or by its nationals. The UN Security Council may also refer cases to it. Its mandate is to try individuals, rather than States. The USA, China, Russia, Pakistan, Israel, India and Sri Lanka are amongst the countries that are not party to the Rome Statute. Three of them are permanent members of the UN Security Council with Veto power.

    The ICC Statute says “(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;”

    This is the LAW that applies, if the UN Security Council refers a War Crime investigation to the ICC.

    It is indeed strange for a Panel of so called “Experts”, appointed by the UN Secretary General, to overlook the above, which has the Force of Law, in the International sphere and go looking for excuses within the ICRC study that has no force as an International Law!

    Even that LAME excuse, trotted out by the Corrupt “Experts” is not found within the ICRC rule 97 that they quote to exonerate the LTTE.

    Mr. Marzuki Darusman, Ms Yasmin Sooka and Mr. Steven R. Ratner are certainly corrupt and has been swayed by Either Money or Political Pressure.

    You wrote “The Panel has followed state practice, which is the basis of Customary International Law”

    And State Practice includes Animate objects as stated by the ICRC itself. Was the UNSG’s Panel blind not to see that? Perhaps they were blinded by money!

    XI. International Red Cross and Red Crescent Movement

    ICRC
    To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that the following can be considered military objectives:

    a) the armed forces except medical service and religious personnel and objects;
    b) the establishments, buildings and positions where armed forces or their materiel are located (e.g. positions, barracks, stores);
    c) other objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offer a definite military advantage.

    The ICRC cites the following State Practices amongst others.

    Australia – Military objectives are those persons and objects ….. (State party of the ICC)

    Belgium – Persons: combatants, every defended position ….. (State party of the ICC)

    Canada – include combatants, unlawful combatants…… (State party of the ICC)

    France – Military Units …. (State party of the ICC)

    Germany – armed forces – including paratroops in descent ….. (State party of the ICC)

    Israel – A soldier is an obvious military target,

    Italy – Armed Forces and military camps ….(State party of the ICC)

    Netherlands – armed forces constitute a military objective. This means the combatants who belong to the armed forces, and the equipment used by them (tanks, vehicles, aircraft, etc). A non-combatant, who may not take part in hostilities, but uses a weapon, also forms a military objective. (State party of the ICC)

    Russian Federation – military objectives include units of armed forces (personnel, weapons and military equipment)……

    UK – The term “military objective” includes combatant members of the enemy armed forces ….. (State party of the ICC)

    USA – Military objectives are combatants …..

    You are conflating the word “objectives” with that of “Objects”.

    The military OBJECTIVE in any armed conflict, International or Local, is to overpower and subdue the perceived Enemy.

    Re “You have failed to address the meat of my argument”

    You have minimal Meat and a whole lot of Fat in your arguments.
    I decided to address the meat and ignore the fat, in the interest of lucidity.

    I am still overseas but do not let that bother you. Give it your best shot.

    Kind Regards,
    OTC

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    Dear OTC,

    Oh dear, you are off on a tangent again! I don’t think overseas trips agree with you, my friend – get back to our shores soon so that we may have a logical discussion.

    Let me take you through it again s l o w l y:

    1. The Panel referred to the ICRC Rules. (agreed between us)
    2. The Panel referred to the movement of civilians to military targets with the intention of protecting them. (agreed between us)
    3. The Panel has ostensibly relied on the portion in the definition section of ICRC Rule 97 where the rule states “Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.” (very obvious!)
    4. Your argument (which shifts from time to time) is that the Panel should have followed the first sentence, namely – “The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.”
    5. I have pointed out that the first sentence deals with treaty obligations and not CIL.
    6. Treaty obligations and CIL are distinct as expressly stated by the ICRC itself in the introduction to the study. (Please read it – it would clarify many of the confusions that you have).
    7. In particular, most of the treaty obligations do not apply to Non-International Armed Conflicts. Hence the ICRC studied CIL to try and find out what the CIL actually is. In order to do this the ICRC had to look at the most “dense” state practice.
    8. I pointed out that the concluding sentence of Rule 97 is also not a comprehensive definition since it limits the application to “military objectives.”
    9. The term “Military Objectives” are defined in the ICRC text itself to mean inanimate objects only (You appear to agree with this as you have not attempted to show otherwise).
    10. Military objectives are defined by the ICRC text to mean inanimate objects. The fact that other texts define them as something else is irrelevant!
    11. More importantly, my friend, please note the several posts made by me where I have clearly said that I agree that Military Objectives SHOULD include military forces. MY POINT, IF YOU COULD PLEASE NOTE, IS THAT THE LAST SENTENCE OF THE ICRC RULE IS INCONSISTENT WITH THAT PRINCIPLE and hence is not comprehensive.
    12. Further, because the last sentence uses the word ‘co-locate’, as per the definition kindly provided by you and the usages of that term set out in the definitions, it is clear that the last sentence of Rule 97 requires movement of the civilians.

    Hope this helps,

    Peace,

    Sulaiman

    p.s.

    I note the following from your last post – which are positive –

    (a) “The reason we are discussing the ICRC is because the UN Sec Gen’s Expert Panel thought it fit to refer to it and not because the ICRC has the power to pass any laws that bind States.”
    (b) “The ICC Statute says “(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;”
    (c) “This is the LAW that applies, if the UN Security Council refers a War Crime investigation to the ICC. It is indeed strange for a Panel of so called “Experts”, appointed by the UN Secretary General, to overlook the above, which has the Force of Law, in the International sphere and go looking for excuses within the ICRC study that has no force as an International Law!

    They are positive because they demonstrate that you have no idea between the distinction of Treaty Law and Customary Law. If you read the introduction to the ICRC Study you would have understood this. At the very least, my friend, read the paragraph you have quoted, i.e. Article 8 (2) (b) (xxiii), fully. You have quoted only the subsection xxiii and not paragraph (b). Paragraph (b) specifically states that it is applicable only to INTERNATIONAL ARMED CONFLICTS. Article 8 (2) (c) and (e) set out the “law” with regard to “armed conflict[s] not of an international character”. Please read before you comment, my friend. That would make our discussions more productive. I will put it down to your foreign trip – for I have come to expect studied responses from you – not knee jerk off the hip responses.

    A person who is really interested in finding the truth would ask himself the following questions:
    (i) Why does the ICC Statute show a distinction between International and Non-International armed conflicts?
    (ii) Could it be that the laws are different?
    (iii) If that be so what is the law and where is it stated?
    (iv) Is there no offence of using human shields for “non-international” armed conflicts?
    (v) Or is it there an offence but is it defined differently?
    (vi) Is that why the ICRC took the trouble of studying the whole gamut of International CUSTOMARY laws to try and establish what the Customary law in relation to non-international armed conflicts is?
    (vii) So was the Panel correct in following International Customary LAw – because that is the law that will be applicable to the war in Sri Lanka?
    (viii)If the Panel had only looked at treaty obligations then the LTTE would have been exonerated completely because there is no separate offence for using Human Shields anyway under Common Article 3 of the Geneva Conventions – so could it be that the Panel was actually trying its best to see how it could find allegations against the LTTE by looking at CIL as well, and was not trying to exonerate the LTTE?

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    Dear Sulaiman,

    You wrote “2. The Panel referred to the movement of civilians to military targets with the intention of protecting them. (agreed between us)”

    Are you trying a fast one?
    That is the lame excuse trotted out by the Darusman panel and your claim that I agreed to that is as lame as their excuse.

    There is no such requirement.
    That is why the Darusman Panel is corrupt.
    That is why you are going in circles.

    In its judgment in the Blaškić case in 2004, the ICTY Appeals Chamber stated in relation to human shields:

    652. The Appeals Chamber notes that Article 23 of Geneva Convention III provides as follows:

    No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.

    It also considers that Article 28 of Geneva Convention IV provides that “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.”

    Article 83 of the same Convention provides that the “Detaining Power” “shall not set up places of internment in areas particularly exposed to the dangers of war.” Furthermore, Article 51 of Additional Protocol I, relating to the protection of the civilian population in international armed conflicts, provides as follows:

    [T]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

    The report pursuant to paragraph 5 of UN Security Council resolution 837 (1993) on the investigation into the 5 June 1993 attack on UN forces in Somalia noted:

    No principle is more central to the humanitarian law of war than the obligation to respect the distinction between combatants and non-combatants.

    That principle is violated and criminal responsibility thereby incurred when organizations deliberately target civilians or when they use civilians as shields or otherwise demonstrate a wanton indifference to the protection of non-combatants.

    The report went on to say that central principles such as this one were clearly a part of contemporary customary international law and were applicable as soon as “political ends are sought through military means”

    The Principle of protecting civilians does not change whether the war is internal or international.

    The corrupt Darusman, Sooka and Ratner cannot take that possition while defending Human Rights. A civilian is a civilian whatever the conflict.

    Kind Regards,
    OTC

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    Dear OTC,

    When you start on the rhetoric it is usually because you are running short of logic.

    “A civilian is a civilian whatever the conflict” – aww how touching. My friend, just read ICRC Introduction. Criminal offences cant be dealt with on the basis of your feelings and emotion. There should be clear offences defined by law. If treaty obligations don’t cover it then customary international law should be looked at. You cannot simply transplant obligations from one regime to another. That is why the ICRC carried out the whole study. Are you now blaming the ICRC? Another goal post shift?

    Did you not read me previous post?!!! Article xxiii is for International Armed Conflicts. It is not applicable to Non-International Armed Conflict. You cannot impose your moral view on criminal offences!! You are absolutely correct in stating that the principle of protecting civilians does not change whether it is internal or international. The principle doesn’t but the OFFENCE does! That is why the ICRC has researched the matter and set out the parameters of the Customary law offences for internal armed conflicts. That is why the Panel found credible allegations against the LTTE for using hostages, firing from near civilians, killing civilians etc and have stated that as a MATTER OF LAW it does not amount to the use of human shields under customary law. They have followed the law and you call them corrupt!! As I said several posts ago – don’t let emotion rule your mind. Think logically.

    Stop being daft about my pulling a fast one. I thought we both agreed that the Panel REFERRED to movement of civilians. That doesn’t mean we agree on the CORRECTNESS of that. Honestly, OTC, you are beginning to bore me – I expected logical discussions. You really need to get back to Sri Lanka!

    Peace,
    Sulaiman

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      Sulaiman

      “Stop being daft about my pulling a fast one.”

      Be realistic.

      “When you start on the rhetoric it is usually because you are running short of logic.”

      Come on, what did make you think this OTC fellow is rational?

      He copy pastes, plagiarises,writes half truth and lies, quotes selectively, possesses no sense of right and wrong, intellectually dishonest, ………….

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        Dear Tamil in a Veddha Mask,

        You wrote the following on May 25, 2014 at 2:16 pm

        “Manoharan You have great sense of History. I envy you ….

        The stupid Tamils suffered last time when IPKF arrived because the Sri Lankan armed forces who were supposed to defend this island were found hiding behind their women folks and VP’s fat bottom” Unfortunately for you, when the IPKF arrived SL forces were confined to Baracks”

        https://www.colombotelegraph.com/index.php/dear-modi-sri-lankas-aggressive-agenda-to-your-notice/comment-page-1/#comment-1296843

        Can you prove that ANYTHING you have written above is True and Accurate, Historically?

        Of course you could not do that then and you cannot do that now because you have LIED through your vulgar Teeth

        Can you Link and QUOTE anything from my posts that is inaccurate or where I have deliberately Lied like you have done above?

        Proves without a shadow of doubt who plagiarises, writes half truth and lies, quotes selectively, possesses no sense of right and wrong, intellectually dishonest, ………….

        I have no problem with you copy pasting as only a fool would retype a quotation from a named source.

        Kind Regards,
        OTC

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    Dear Native Veddah,
    We must believe in the innate goodness of people and the power of rational thinking even on emotive issues. I think I contributed to OTC getting defensive and argumentative by taking an approach that pointed out his flaws. I should not have let it become adversarial. I will endeavor to be positive in the future.
    Peace,
    Sulaiman

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      Dear Sulaiman,

      I have given an adequate response to the fool who thinks his Veddha Mask fools everyone into believing he is an authentic SL aborigine. Let’s see whether he can defend what he wrote even after 3 months!

      Throwing accusations is easy but proving them is not.

      Re “I think I contributed to OTC getting defensive and argumentative by taking an approach that pointed out his flaws”

      I always welcome anyone who points to my flaws and I unhesitatingly apologise if I am proved wrong. Since I am prepared to do that, I have no egoistical position to defend by getting defensive.

      Kind Regards,
      OTC

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    Dear Sulaiman,

    I returned back home yesterday and could not read CT for some time. On reflection I seem to have misunderstood you. My apologies.

    What the Panel has stated is printed in black and white in their report (does not call for our agreement).

    The movement of civilians to military targets is not a requirement to be held guilty of the war crime of using a Human Shield. Nowhere does the ICC or the ICRC state that movement is a requirement.

    The ONLY people who say so is the Darusman Trio of so called experts (Darusman, Sooka and Ratner). That is why they are corrupt. You have been struggling to establish that “movement” and not civilian “presence” is required in order to establish the war crime charge of using a human shield.

    The presence of civilians to deter attacks on military targets is the only requirement.

    It does not matter how that came about. It does not matter whether the LTTE moved themselves or their military equipment to where the civilians were or whether the civilians were transported or forced to walk to where the LTTE and their military equipment were. The result of either, is the same. The presence of civilians at or near or amongst military targets to deter attacks.

    Re “That is why the ICRC has researched the matter and set out the parameters of the Customary law offences for internal armed conflicts”

    The ICRC is not a law making body, the ICC is.

    ICRC has only an observer status with the UN. It’s opinions therefore has no binding on any country. Hence why did a UN panel refer to the ICRC instead of the ICC in giving an OPINION on the Law?

    Who would prosecute and Judge the case? The ICC.
    Whose opinions are binding? The ICC’s.
    What Laws would it follow???
    The ICRC has no standing but it was referred to by the UN experts. Why?

    Australia, Belgium, Canada, France, Germany, Israel, Italy, Netherlands, Russian Federation, UK and USA are amongst countries that includes a combatant in the definition of a Military objectives. Hence any combatant mingling with civilians and firing at the opposing force is using the civilian presence to shield themselves from return fire.

    Would you be going against the customary positions taken by the above countries by taking the position that only inanimate things can be military objectives and hence no opposing force can return fire because their are civilians present?

    Hope I did not bore you.

    Kind Regards
    OTC

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    Dear OTC,

    Welcome back. Apology accepted – you were rushed and probably didn’t have time to think things through. No issue.

    As regards your comments, however, I am afraid I am unable to agree with most of them.

    (a) What the Panel has stated does not call for agreement as it is printed
    If only things were so clear. Peoples’ readings of text differ. What may have been clearly stated for one may be obscure to another. I stated my (our) understanding of what was stated by the Panel. You will recall our difference in opinion on the meaning of what was stated by the ICRC. Even when we say “X said this” it is our interpretation of what was said. Even a direct quote taken out of context may mean something else. Hence the necessity to agree on what was stated by the Panel. Whether the Panel’s view was correct or not is a separate matter (which you have now conceded).

    (b) Movement not required
    Again, you are going around in circles. We have taken the debate to the next level, my friend. The point simply put is this – International Treaty LAw and International Customary Law have different rules with regard to the laws of war. The International Treaty Law has limited application to internal wars. Customary Law is obscure and has to be assessed by looking at State Practice. The ICRC study does that. Whether it is adequate or not is another matter, but at present it is the only large scale study of customary law on the laws of war. In terms of the report the practice of “most” States requires movement of civilians to the military targets. For something to be considered Customary Law it has to have virtually uniform and universal acceptance. The Panel has gone straight to the point and has stated that as a matter of customary law movement will be required. You cannot look at statements in the Treaty Law realm or those applicable to international armed conflicts and state that those are applicable to customary law and internal armed conflicts. To advance your case, please provide the reference in the ICRC report that deals with “internal armed conflicts” and “customary law”.

    So it does matter if the LTTE moved the targets or the civilians. The offences are distinct. The ingredients are distinct. The idea that the result is the same is a wrong yardstick. A person being killed in self defence is different from premeditated murder. Premeditated murder is not an offence when it is a State-sanctioned execution after a trial. The result is the same – person is killed – but are they all offences? If you are going to call the Panel corrupt, at least try to show that IN LAW they are wrong. Don’t conflate your moral views with legality.

    (c) ICRC is not a law making body ICC is
    Technically speaking the ICC is NOT a law making body. Judicial decisions serve to interpret the law not make them. I would concede that judicial decisions do in effect shape the law and thus in a sense “make” it. But please be careful in spouting propositions. International Laws are made by States – through treaties and customs.

    (d)Who will prosecute and judge – ICC
    The ICC will judge (prosecution is done by the ICC Prosecutor) only if the matter is referred to it by the Security Council (SC) or it has the right under the ICC statute. There is no guarantee that the SC would refer the matter to the ICC – it may create a special tribunal – like the ICTY or the ICTR (see also the special courts in Sierra Leone, Lebanon, Cambodia and East Timor). The ICC is just one judicial body, albeit the permanent one. But it does not have universal jurisdiction.

    (e) What laws would the ICC follow?
    Interestingly you don’t answer this question. If you had taken the trouble to answer your own question you wouldn’t be having this debate. With regard to internal conflicts the the laws the ICC will apply are set out in Article 8(2)(c) of the ICC Statute:

    8.(2)(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

    (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

    (iii) Taking of hostages;

    (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

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