INTERNATIONAL LAWS in ARMED CONFLICT
Posted on January 26th, 2017

By Neville Ladduwahetty Courtesy The Island


During the course of an e-mail exchange, the question as to which Laws should guide issues relating to Sri Lanka’s Armed Conflict became a contentious topic. The opinion of some was that International Human Rights Laws (IHRL) and International Humanitarian Laws (IHL) should operate concurrently while others were of the opinion that International Humanitarian Law should operate separately. Since International Humanitarian Law is triggered ONLY during an Armed Conflict it is necessary to first establish whether the conflict in Sri Lanka had reached the threshold of an Armed Conflict.

SRI LANKA’S CONFLICT: ARMED CONFLICT or NOT?

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The two undisputed authorities cited as to what constitutes an Armed Conflict are: (1) The International Criminal Tribunal for former Yugoslavia (ICTY, 1995) appointed by the Security Council and (2) the ICRC, internationally acknowledged as the accredited agency for IHL

During the Prosecutor v. Dusko Tadic trial the ICTY 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 conflicts and EXTENDS (emphasis added) 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 (emphasis added) of the warring State or, in the case of internal conflicts, the WHOLE TERRITORY (emphasis added) under the control of the party, whether or not actual combat takes place there”.

Part 1, Article 1 (1) of the ” Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 states:

“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 shall apply to all conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

Therefore, it could be justifiably concluded that the conflict in Sri Lanka was in fact an Armed Conflict; a fact also acknowledged by the UNSG appointed Panel of Experts and in the OISL report of the UNHRC.

CURRENT OPINION

An official publication titled “INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT” by the United Nations Human Rights, Office of the High Commissioner, New York and Geneva, 2011 states:

“Two arguments have specifically been raised against their concurrent application. Firstly, it has been argued that international human rights law and international humanitarian law are regimes that apply in separate contexts – namely the former in peace time only and the latter in armed conflict – and that concurrent or complementary application is therefore, irrelevant. Second, it has also been argued that if both bodies of law are applicable in situations of armed conflict, then the question is whether one body of law would have pre-eminence over the other as a matter of lex specialis” (p.54).

Continuing the UN document states:

“A number of decisions by human rights and judicial organs have concluded that international human rights law applies at all times, irrespective of whether there is peace or an armed conflict. Meanwhile, international humanitarian law specifically applies only to situations of armed conflict. Thus, in an armed conflict, international human rights law is applicable concurrently with international humanitarian law. For example, the International Court of Justice has clearly stated that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency” (p. 55).

CONDITIONS for CONCURRENT

APPLICATION of IHRL and IHL

The notion that International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are applicable concurrently during an armed conflict is widespread.  However, this could be misleading because it could be misinterpreted that the full scope of IHRL that applies at peace time is applicable along with IHL during an armed conflict.  Since the UN opinion cited above acknowledges that certain provisions could justifiably be derogated provided certain provisions of Article 4 of the Covenant are retained, means that the notion that the full scope of IHRL that is applicable during peace time also applies during an Armed Conflict (as in Sri Lanka), is flawed. Thus, for IHRL and IHL to apply concurrently it is absolutely necessary for human rights to be derogated to the limits stated in Article 4 (2) of the Covenant. However, since these provisions, identified as the “hard core human rights”, are incorporated in provisions of Additional Protocol II of 1977, the concurrent inclusion of IHRL with IHL when addressing issues of accountability should be avoided since it could lead to confusion.

The derogation of IHRL during Sri Lanka’s Armed Conflict is justified because Sri Lanka’s Emergency Regulations were in operation during and after the conflict and furthermore, Article 15 (7) of the Constitution permits the restriction of several fundamental rights in the interest of national security. Even though the provisions of Article 4 of the Covenant are strictly not applicable to Sri Lanka since they have not been incorporated into domestic law, the fact that Additional Protocol II of 1977 incorporates the provisions in Article 4 of the Covenant that cannot be derogated, the applicability of IHL as provided in Additional Protocol II is justified since it is part of Customary Law. Thus, addressing accountability on the basis of Protocol II of 1977 provisions of IHL is valid.

Addressing the issue of “hard core of human rights” following derogation of IHRL in general, an ICRC publication of October 2002 titled “International humanitarian law: answers to your questions.” states:

“The International human rights instruments contain clauses that authorize States confronted with serious threats to suspend the rights enshrined in them.  An exception is made for certain fundamental rights laid down in each treaty, which must be respected in all circumstances and may never be waived regardless of the treaty.  In particular, these include the right to life, the prohibition of torture and human punishment or treatment, slavery and servitude, and the principle of legality and non-retroactivity of the law.  These fundamental rights that States are bound to respect in all circumstances, even in the event of a conflict or disturbance are known as “hard core of human rights”.

CONTRADICTIONS when IHRL and IHL are CONCURRENTLY APPLIED

An official publication of the ICRC titled “The Use of Force in Armed Conflict”, (2013) states: “It was also suggested that imposing human rights obligations on States in armed conflict situations might increase the asymmetry in non-international armed conflicts between States and organized non-State armed groups, since the latter are in principle not bound by human right law. As a consequence there would not only be an asymmetry in the means and methods of warfare used, but also as regards the range of rules belligerence must respect.

This would provide an advantage to organized non-State armed groups which are bound by IHL only while States would be bound by both IHL and human rights law.”

Other contradictions between IHRL and IHL are that IHL operates on the principles of Distinction and Proportionality. Such principles on the other hand are unknown in IHRL. Therefore, while the LTTE is required to conform to principles of Distinction and Proportionality as a Party to an Armed Conflict, they are not bound by the need to distinguish between combatants and civilians when IHRL and IHL are concurrent.

This is the most serious objection to the concurrent application of IHRL and IHL because only State Parties to an Armed Conflict are bound by the need to abide by provisions of IHRL and IHL while non-State actors such as the LTTE are bound only by IHL. For instance IHRL requires that States are responsible for the safety of the civilians, but the non-State actors such as the LTTE are not because they are not bound to protect civilians. However, under provisions of IHL all Parties to the Armed Conflict are required to adopt measures to protect the civilians under their charge. Such asymmetries present serious challenges to the concurrent application of IHRL and IHL.

Contradictions could be avoided by addressing issues of accountability on the basis of IHL as stated in Additional Protocol II since it incorporates the “hard core human rights” provisions of IHRL. This position is further justified on the basis of the ruling by the International Criminal Tribunal for former Yugoslavia cited above that “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities…”.

To be continued

8 Responses to “INTERNATIONAL LAWS in ARMED CONFLICT”

  1. Dilrook Says:

    Thank you Neville.

    We must be very clear on this.

    [Quote] Therefore, it could be justifiably concluded that the conflict in Sri Lanka was in fact an Armed Conflict; a fact also acknowledged by the UNSG appointed Panel of Experts and in the OISL report of the UNHRC. [Unquote]

    Armed conflict is war.

    Some people very naively think that by naming what happened in Sri Lanka as “not war”, we can avoid war crimes investigations. I pity their ignorance on a very important matter on which Sri Lanka’s future hinges. I may also confirm what TNA says that Sinhalese are more interested in labels than substance.

    Sri Lanka should have initiated a comprehensive war crimes investigation in November 2009 into the conduct of all parties – security forces, LTTE, Tamil political parties, India, Tamil diaspora, NGOs, etc. Failure to do this keeps bleeding the country. Had we done so on our own terms then, we could avoid political solutions, tinkering with the constitution, 13A and even use the culpability of Tamil civilian groups as a bargaining ship against them. Sadly, our government was busy celebrating, politics and other useless things in the spare time created by the absence of war.

  2. Ananda-USA Says:

    Dilrook,

    What makes you think that even if we had conducted our own “war crimes” in investgations, that it would satisfy the EELAMISTS and halted the witch hunt against Sri Lanka?

    The objective of the EELAMISTS is not to punish the defenders of the state of Sri Lanka war war crimes; they could not care leas because it is a double edgex sword pointed at themselves too, albeit the primary war riminals if the LTHE are al ready dead. Instead, it is to use that allegation to gain the support of Western Powers so they can get their Sovereign EELAM by stealth now.

    That EELAMIST quest will NEVER END, especially as long as 80 million Tamils salivating over the prospect of incorporating a large part of Sri Lanka into a Greater Tamil Nadu live across the Palk Strait.

    That EELAMIST quest will NOT END even with the annexation of the North and East into Tamil Nadu; it will CONTINUE until there is ONE INCH of land in Sri Lanka beyond their grasp in the possession of the Sinhalation people crowed inot increasingly smaller parts of the land in which there were once sovereign.

    That is why WE SINHALESE have NO OPTION but to CONFRONT & DESTROY all attempts ….. the PCs, devolution, Federal Systems and so forth ….. to create racist apartheid self-governing separatist entities within Sri Lanka. But, the Yamapalanaya is promising that very disintegration of Sri Lanka into Bantustans.

    We have NO CHOICE BUT TO FIGHT BACK with all of our might my friend if we Sinhala people are to live as a free sovereign people in the land our ancestors preserved for us through millenia with the sacrifices of their limbs and lives against insuperable odds.

    Our ancestors did that yesterday, it is our turn today.

    Western Powers engaged in this witch hunt have their own agenda and are using it to transform other countries into slavish poodles.

    HOWEVER, a wee bit of daylight has broken through the gloom today: The British Prime Minister has called for a renewed US-UK alliance dedicated to the principle of not interfering in sovereign nations to remake the world in their own image!

    That is a welcome proclamation that ECHOES Donald Trump’s own words.

    The Sri Lankan government, and the Patriotic leaders in the OPPOSITION, should seize this opportunity to convey their support for this NEW FOREIGN POLICY and to gain the ear of these leaders to Sri Lanka’s own battle to secure its place in the sun free of interference by foreign powers inimical to the majority of its people.

    Unfortunately for us, we do not have a PATRIOTIC GOVERNMENT in power at this time, we have only an undemocratic JUNTA under a PARA-GATHI AGA-MATHI pretending to be representative of our people.

    In the absence of a REPRESENTATIVE PATRIOTIC GOSL, the patriotic leaders of the OPPOSITION should send messages of support for this new US-UK foreign policy of non-interference within sovereign nations, pending the restoration of a PATRIOTIC government in Sri Lanka in the near future, hopefully later in 2017!

  3. Dilrook Says:

    @Ananda

    Tamil Eelamists will never stop demanding it no matter what but we can live with that. They have been doing it since 1922.

    The problem is nations that make use of the war crimes issue to extort various demands. By a comprehensive war crimes investigation we could have shut them up and even turned the tide against Eelamists.

    They do have geopolitical agendas and these will not go away. But taking on Sri Lanka on the war crimes front will land them in more trouble. Sri Lanka can retaliate by imprisoning identified Tamil war criminals and demand the EU, Canada and the US to comply with UN resolution 1373 and hand over the terrorists and their financiers. They have to be very careful not to as it can set a bad precedence in their countries which will be exploited by Jihad partners of Tamils.

    Armed with the report, the government can lay down its terms to local Eelamists.

    Despite our repeated attempts, the LLRC Commission has not factored in our submissions on war crimes by Tamils other than the LTTE in the report. The most fatal flaw of the LLRC report is it mixes “ethnic problem”, political solutions and war crimes just the way Tamil Eelamists want. These are completely independent issues. Just 8 days after winning the war, our UNHRC representative tied 13A with the war crimes issue and “won” the UNHRC vote! It was not a victory but a massive defeat.

    LLRC report became a proverbial “own goal” against the nation and its armed forces. Obviously, no one takes it seriously. That is why we had 4 more reports (Paranagama, Sir Desmond, Udalagama and Muththetuwegama) thereafter! None of these can save Sri Lanka and its soldiers. They are all aimed at civilian consumption and pandering into Tamil Eelamist extortion (with the hope that it will shut them up).

    A war crimes investigation is a legal (not civilian) process applying the international law to the conflict. We are yet to have one which means we are exposed to a foreign imposed investigation and Tamil Eelamist extortion. A war crimes investigation will open up old wounds, create hatred among Tamils and cause massive unpopularity of politicians in power then. But the benefits are much higher. It should have started in 2009 and completed within Mahinda’s second term.

    Many people with no qualifications in international law started to poke their fingers into it and messed it up. The same was happening in the war until 2005. Afterwards a skilled person with the knowledge and experience took over, shut out all other advice and carried it to a finish. We didn’t see it happen in relation to the war crimes issue.

  4. Cerberus Says:

    Mr. Ladduwahetty, Thank you for your relentless efforts to shed light on this murky issue. The GoSL has not defended Sri Lanka at all except during the time Dayan Jayatilleke was our UN ambassador just after the war. We need to send a small delegation either from GoSL or from the JO to meet UNHRC to state the Sri Lanka side of the story, about the atrocities done to Sinhala/Buddhists and Others in Sri Lanka for a period of nearly 30 yrs and the fact that Sinhalese are a minority against the majority of 68 million Tamils in Tamil Nadu 12 miles away. Such a list ought to be distributed to VIPs in Geneva to make our point clear as to why armed conflict had to happen to stop the carnage. Please see below.

    http://www.ceylontoday.lk/print20160321CT20160630.php?id=2271- Tamil Diaspora, TNA MPs to meet Zeid

  5. Fran Diaz Says:

    Our thanks to Mr Laduwahetty for his untiring efforts to de-mystify the International Law in Armed Internal Conflict.

    ————

    During the Armed Internal Conflict in Sri Lanka, food & medicines was sent to the terrorist areas, before, during and after the Conflict. The LTTE cadre intercepted the lorries carrying these items and some of the lorries and the drivers disappeared, forever. The International Red Cross bore witness to such events.

    After being at the receiving end of nearly 30 yrs of LTTE terrorism, the People of Lanka rejoiced victory over a killer outfit which was trained by INDIA in Tamil Nadu. The Tamil leaders Vadukoddai Resolution of 1976 gave free license to ‘get Eelam through use of Violence’. Amazingly, this piece of Resolution is still not officially revoked in Parliament by the Tamil leaders. What does the UNHRC have to say to that ?

    Whatever can be done through the UNHRC to ‘control & govern’ Lanka from outside, will be attempted. We cannot help but feel that all this is tied up with Europe’s present Economy/Security issues. Hence, the War Crimes charge. That is just one end of War Crimes problem.
    We hope that the new Sec.Gen of the UN will take a more balanced and fair view of the War Crimes charge and dismiss it.

    The other main end of the War Crimes problem :
    Tamil masses of Lanka are led by the Tamil Diaspora.
    The mass of Tamil folk who have got so much from Sri Lanka appear ungrateful. They (the Tamil Diaspora) have no qualms about downing abroad the country that helped them to get release from CASTE, Sri Lanka. Please read Mr Kanthar Balanathan’s article re how CASTE governs Tamil mass thinking. For them, the fight for Tamil Eelam is a fight to regain human dignity.

    Question : Why is Sri Lanka paying dearly for Tamil Nadu CASTE/poverty problems ?

    Dilrook has pointed out that right now there is a drought in Tamil Nadu.
    The last exodus of Tamil folk into Lanka was supposedly during a drought in TN (1960s), as well another exodus later to join the LTTE when P’karan controlled the N&E.
    Lankan authorities have to be on high alert that NO illegal migrants arrive in Sri Lanka. Help given to any needy in Tamil Nadu or elsewhere WITHOUT illegal migration into Lanka, is a different issue.

  6. Dilrook Says:

    A very insightful comment by Fran.

    [Quote] The last exodus of Tamil folk into Lanka was supposedly during a drought in TN (1960s), as well another exodus later to join the LTTE when P’karan controlled the N&E. [Unquote]

    A little desk research proves this is true.

    Major droughts in Tamil Nadu in history include 1899, 1969 and 1983.

    These years and years immediately following these saw a massive increase in Tamil population and violence in Sri Lanka. The 2016/17 drought which is going to be the worst to hit South India will also send a large number of south Indian illegals to Sri Lanka. India will be impatient to sign ETCA and build the bridge.

    Building a reservior or anymore water bodies in the north is utterly foolish and panders into Tamil Eelam. I very strongly disagree with anyone proposing to build a reservior or anymore water bodies and warn Sri Lankans against it. No with an iota of love for Sri Lanka would ever recommend building a reservior or anymore water bodies in the north. I would even support the willful neglect of northern water bodies to protect Sri Lanka from Tamil invasion. It is a matter of national survival.

  7. Cerberus Says:

    The whole world was told by the Tamils that they are a minority in Sri Lanka and the majority are suppressing, killing and ill-treating the Tamils. On the contrary, they have more rights in Sri Lanka than in Tamil Nadu as they have Free Education and Health Care in Lanka only. None of the States adjoining Tamil Nadu (Kerala, Karnataka, Andrapradesh) allow Tamil as a State language. However even though there are only about 11.2% Tamils in Sri Lanka, Sri Lanka has adopted Tamil as a National & Official language. They get free education, free medical care and are free to live in the South among the Sinhalese and others. Some statistics regarding SL Tamils for your information from an article in Lanka Web. (Please see Appendix).

    Most of these Tamils were Dalits or Untouchables from South India. In India ‘Untouchability’ is an institutionalized form of slavery. If someone is born to the Untouchable caste (now known as Dalits), they have little hope. Their station in life is fixed. In their birth certificates, they have to state their father’s caste. To escape caste many of them have migrated to other countries – a move which is most likely encouraged by India. They are in Malaysia, Fiji, Mauritius, Madagascar, Australia, Canada, Europe, Sri Lanka, South Africa, etc. Sri Lanka is particularly vulnerable to illegal migration since Tamil Nadu is only 12 miles away across the Palk Straits. So by encouraging the emigration of the Dalits from India, the upper caste people have reduced the Dalits the way U.K. got rid of their convicts by sending them to Australia. This method of exporting their unwanted to other countries is also a way by which India has been slowly invading all the countries mentioned above. In the case of Fiji, which is another small Island, the current percentage of Indians is 51%. They have banned Indians from migrating to the country anymore.

    These Indians who migrate to other countries also set up shops to sell Indian groceries and the Indian culture. Especially in countries such as Africa where there is no strong culture established the people take to the Indian culture easily and adopt the Indian eating habits etc. As you can see in the world today anywhere you go there are Indian restaurants. Therefore by exporting their Dalits, they have also created an avenue for export of their culture and the groceries, which are made in India.

    Those in India and the West must look at the Tamil issue in Sri Lanka objectively and realize that there is no real issue. Between Tamil Nadu and Tamils in Sri Lanka, they have hyped up between them so-called “grievances” in order to create a separate state called Eelam. Creating a separate state for Tamils will be suicide for Sinhalese due to a large number of Tamil Dalits in Tamil Nadu (about 15 Million) dying to get out of that caste-ridden hellhole in Tamil Nadu. There is also a severe drought on in Tamil Nadu at present which factor encourages Tamils to flee Tamil Nadu.

    Caste Discrimination is the main reason as to why the Tamils have purposely created ethnic issues in Sri Lanka while in all the other countries they migrated to they have been lying low. They are hoping that by creating an issue where there is none, they can justify the creation of a separate state in Sri Lanka for Tamils, which will empower them to import the millions of Tamil Dalits from India and take over Sri Lanka.

    The following should be done by all Concerned Citizens of Sri Lanka :

    A List should be made of both Humanitarian and Human Rights granted to Tamils (and other Minorities) in Sri Lanka since Independence in 1948. This should be made available to the UNHRC and UN and all the world leaders by the Sri Lanka organisations & Concerned Citizens, and the Sri Lanka Govt.

  8. Fran Diaz Says:

    Dilrook,
    Thanks for your comments.

    ———

    If the Tamil Nadu people want water during a drought, there are a number of ways they can use to turn sea water to clean, useable water.
    Money that Tamil people have wasted on terrorism of 30 yrs ought to have been used to prepare for droughts in Tamil Nadu & the North of Lanka.
    People of California USA have prepared themselves for droughts by having devices to turn sea water to clean water. They have set up a large desalinating plant in Santa Barbara, CA, in anticipation of future droughts.

    However, Sri Lanka has NO solution for the CASTE problems of Tamil Nadu. That has to be solved at the source – no other way, as Lanka has no jurisdiction over Tamil Nadu law.

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