By Neville Ladduwahetty  Courtesy Island

Confusion on how to categorize Sri Lanka’s conflict has a direct bearing on how the issue of accountability is handled. If categorized as an Armed Conflict the scope and nature of the accountability exercise would take a certain prescribed trajectory that is defined by internationally accepted provisions of International Humanitarian Law (IHL). On the other hand, if categorized as “eliminating terrorism” the accountability exercise would be defined by Domestic Law Enforcement where provisions of Human Rights Law apply. Thus, categorizing it as one or the other or a combination of both has a direct bearing on the nature and scope of investigations into issues of accountability.

In a new document titled “THE USE OF FORCE IN ARMED CONFLICTS: INTERPLAY BETWEEN THE CONDUCT OF HOSTILITIES AND LAW ENFORCEMENT” (ICRC, November 2013) the ICRC categorizes the use of force during conflicts as “Hostilities paradigm” or “Domestic Law Enforcement paradigm”. This document states: “The paradigms of the conduct of hostilities and law enforcement find their international legal basis in the legal regimes of IHL and human rights law. The IHL basic rules governing the conduct of hostilities were crafted to reflect the reality of armed conflict. They are based on the assumption that the use of force is inherent to waging war because the ultimate aim of military operations is to prevail over the enemy.” This is the Hostilities Paradigm (pp 6-7).

Continuing, the above cited document states:” Human Rights Law is based on different assumptions. It was initially conceived to protect individuals from abuse by their State. Its rules on the use of force in law enforcement essentially provide guidance on how force can be used by State agents when it is absolutely necessary in self-defence; to prevent crime, to effect or assist in the lawful arrest of offenders or suspected offenders; to prevent the escape of offenders or suspected offenders and in quelling a riot. In brief, human rights law regulates the resort to force by State authorities in order to maintain or restore public security, law and order. The essence of the principles governing the use of force under law enforcement in human rights is that lethal force may be used only as last resort in order to protect life, when other available means remain ineffective or without any promise of achieving the intended result”(ibid).

Therefore, the categorization of the conflict in Sri Lanka is critical in determining whether International Humanitarian Laws or Human Rights Laws applies, and thus which of the two ICRC paradigms applies, with regard to the nature of violations alleged or real, committed by the Government and the LTTE. This would then set the trajectory of the nature and scope of any investigations pertaining to the conduct of the war.

CATEGORIZING the CONFLICT

The conflict in Sri Lanka clearly met the threshold of a Non-International Armed Conflict as defined by the International Criminal Tribunal for the former Yugoslavia of 1995 (ICTY) in the Prosecutor v. Tadic case. The Tribunal stated: “…we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring State or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there” (Definition first cited by me in a article titled “International Humanitarian Law in the Context of an Armed Conflict”, The Island, March 13, 2008. The UN appointed Panel of Experts also cited this definition in their report of March 2011 (3 years later), and categorized the conflict in Sri Lanka as an Armed Conflict.).

In addition, unlike most other armed dissident groups in other countries, the LTTE had a command and control structure within its ground, naval and air cadres all in distinguishable uniforms, and supported by land, sea and air capabilities and territory recognized as “LTTE controlled areas” from which sustained attacks against the Sri Lankan state were carried out, augmented by acts of terror. These attributes backed up by the opinion of the ICTY (1995) cited above and other criteria established by guardians of IHL, the ICRC, should be the basis to categorize the conflict in Sri Lanka as an Armed Conflict up to the very end in May 2009.

On the other hand, if the conflict was between the Government of Sri Lanka and a terrorist group Domestic Law Enforcement paradigm and Human Rights Laws would apply. Since acceptable RULES AND GUIDELINES FOR DEALING WITH TERRORISM DO NOT EXIST under the Domestic Law Enforcement paradigm, Governments are expected to meet an UNDEFINED HIGHER THRESHOLD in respect of responsibilities than the terrorist group they deal with. This interplay between the two paradigms has caused many commentators to be confused; as evident from statements that even if the conflict in Sri Lanka was an Armed Conflict, the Government should act more responsibly than the LTTE. In fact, the forces did act more responsibly even though they were not required to do so per IHL.

One could say that such cut and dried categorizations do not exist. However, since it cannot be denied that until the very end the conflict in Sri Lanka was an Armed Conflict, International Humanitarian Law should apply, the consequence of which is that the Government and the LTTE should be held EQUALLY responsible, and the accepted standards and guidelines should be provisions of Customary Law that come within the scope of the Additional Protocol II of 1977. Equal responsibility in the conduct of the conflict is separate and unrelated to political arrangements.

The prevailing confusion is evident from the call by the Tamil diaspora and the Tamil National Alliance (TNA) for an international investigation. The understanding among them is that ONLY the conduct of the Government should be investigated or evaluated, and not the violations by the LTTE. Such distorted understandings persist because of the lack of appreciation of the interplay between the Hostilities paradigm and the Domestic Law Enforcement paradigm. The consequence of this is to hold ONLY the Government accountable and not the LTTE. On the other hand, if the conflict is categorized as an Armed Conflict, both the Government and the LTTE would be EQUALLY accountable, making it very unlikely that LTTE sympathizers would opt for any form of investigation regarding the conduct of their heroes.

IMPACT OF INVESTIGATIONS

Conflict categorization has a direct bearing on the scope and nature of the investigations called for in hopes of establishing the “Truth”. The 3 charges made: Establishment of No Fire Zones, Indiscriminate Shelling; and Shortcomings in Supply of Humanitarian Aid would be different under the two paradigms.

Under the Hostility paradigm, No Fire Zones exist ONLY if a written agreement existed between the Government and the LTTE. That such an agreement did NOT exist means No Fire Zones did not legally exist. As for Indiscriminate Shelling, the right to respond to attacks of artillery fire, on grounds of self-defence exists, albeit in a proportionate manner. On Underestimation of Humanitarian Needs, the provisions of the Hostility paradigm ONLY require that access be provided for others to provide humanitarian aid; NOT that the aid itself be provided.

Under the Domestic Law Enforcement paradigm however, the Government would have been obligated to act under Human Rights Laws, placing a heavy burden on the Government without any obligations on the part of the LTTE. Consequently, under Domestic Law Enforcement the scrutiny would mostly be on the Government with relatively little focus on the actions of the LTTE.

How these investigations would be received by those in the South and the North of Sri Lanka would depend on the choice of the paradigm. Outcomes of investigations would cause disappointment and resentment depending on how their respective heroes are portrayed. The end result would be to further polarize the society with dire consequences on reconciliation. Therefore, the Government has to carry out a concerted campaign to bring to the attention of those calling for investigations, that the inevitable outcomes would be a setback to Sri Lanka’s efforts to build a stable society.

CONCLUSION

A new ICRC communication cited above states that the conduct of conflicts find their international legal basis in the legal regimes of International Humanitarian Law and Human Rights Law, and categorizes conflicts under a “Hostilities paradigm” or under a “Domestic Law Enforcement paradigm”. Therefore, how the conflict is categorized is critical to the scope and nature of possible investigations on Accountability.

The facts presented above clearly warrant Sri Lanka’s conflict to be categorized as an Armed Conflict. The lack of understanding of the interplay between the paradigms of Hostilities and Domestic Law Enforcement has caused commentators to add to the confusion by first acknowledging that the conflict in Sri Lanka was an Armed Conflict, and then expecting the Government to fulfill responsibilities which are not required of the LTTE in ignorance of the fact that the cornerstone of Armed Conflict is that both the Government and the LTTE are EQUALLY responsible. Awareness of such fundamentals would deter those calling for investigations because the inevitable outcome would be to expose the conduct of the respective heroes of the conflict; leading to reviving much resentment and bitterness. This would result in ONLY polarizing the communities with drastic consequences on reconciliation.

The outcome of investigations under Domestic Law Enforcement paradigm would be to hold the Government and the LTTE accountable to varying degrees based inevitably on so called “credible evidence”, without the participation of the primary actors from both sides as happened in South Africa. Investigations therefore would ONLY result in a catalogue of atrocities committed without any verifiable evidence. Consequently, investigations would NOT lead to any meaningful conclusions as evident from the experiences of “Truth” Commissions in other countries, judging from the material cited below. The only tangible outcome is to rekindle bitterness without giving a chance for healing and reconciliation.

The outcome of “Truth” Commissions in other countries were:

“Argentina, in most cases, the commission was only able to determine the status of those disappeared, rather than being able to name the victimizers;

Brazil, the commission will issue a report with its findings. The group will not have, however, the obligation to disclose everything they discover;

Canada, The Indian Residential Schools Truth and Reconciliation Commission is a currently active (as of October 2013) commission investigating human rights abuses in the Canadian Indian residential school system;

Colombia, aims to help victims to recover from the armed conflict;

Chile, the report of this commission was used by the government of Chile to give out pensions and other benefits to survivors;

Czech Republic investigated criminal acts from the period 1948-1989 which were unsolvable for political reasons during the Czechoslovak communist regime” (Wikipedia).

The way forward for Sri Lanka is to downgrade Accountability issues as they would be counterproductive to the all-important task of Reconciliation. The focus instead should be to expand the scope of reconciliation beyond that recommended by the LLRC to include a political solution that would empower the District as the peripheral unit with serious power sharing at the Center in an arrangement that would enable all communities to share Executive power at the Center, in ratio to their representation in Parliament. Focusing on Accountability is to live in the past. Focusing on Reconciliation is to engage in endeavours central to building an inclusive society and a stable future.