International laws in armed conflict Part II
Posted on January 29th, 2017

By Neville Ladduwahetty Courtesy The Island

POST-CONFLICT APPLICATION of IHRL and IHL

The position originally adopted by some participating in the e-mail exchange was that IHRL and IHL concurrently apply in Armed Conflict. Since then they have conceded that the Law applicable to Armed Conflict of a non-International nature is IHL and furthermore that it is applicable up to the cessation of hostilities in Sri Lanka in May 2009. Their original position that IHRL and IHL concurrently applied was influenced by a misguided notion that such a position would strengthen Sri Lanka’s hand to address issues of accountability and also defend the interests of the security forces better. However, what is evident from the foregoing is that the concurrent application of IHRL and IHL is in fact detrimental to Sri Lanka’s interests.

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Since it has been conceded that only IHL applies up to the cessation of hostilities i.e. May 2009, it means that their original position would have jeopardized the interests of not only Sri Lanka but also those of the security forces. Acknowledging this reversal is a manifestation of integrity that is rare and therefore noteworthy. What is even more heartening is that since IHL is more restrictive in its application and offers greater latitude when engaging in an Armed Conflict, Sri Lanka would be in a better position to meet the charges leveled against it since most of these occurred prior to May 2009 than under their previous position that IHRL and IHL operated concurrently.

Notwithstanding these clarifications it is important to note that the ruling by the ICTY was that IHL continues to apply “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”. Furthermore, although there was no formal peace settlement, the rationale behind using this ICTY ruling to advantage is that if IHL is applicable ONLY up to May 2009, IHRL cannot be enlarged beyond “hard core human rights” until conflict related issues are resolved. Considering the realities that prevailed post May 2009 such as the situation in Manik Farm and other detention camps, the presence of land mines in undisclosed locations, security related issues from potential acts of terrorism, and identifying former LTTE combatants from bona-fide civilians as well as the challenges associated with providing humanitarian assistance to over 300,000 displaced that included combatants, it would be unrealistic to expect IHRL to operate fully beyond May 2009 without first addressing issues relating to human safety. .

The need to restrict personal liberties until conflict related issues are resolved is addressed in Article 2 Section 2 of the Additional Protocol II. This states: “At the end of an armed conflict, all persons who have been deprived of their liberty or whose liberty has been restricted for reasons relating to such conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty”. These are all provisions of IHL.

A more compelling reason not to apply IHRL and IHL concurrently immediately after hostilities cease is that the starting point to relax IHRL is the “hard core human rights”. Therefore, the transition process must necessarily be gradual. How gradual is a subjective call that needs to be handled with caution if unintended complexities are to be prevented. Under the circumstances stated above and strengthened by the rulings of ICTY and ICRC the applicable Law beyond the cessation of hostilities should be IHL.

CONCLUSION

This article is the result of a debate between two divergent views as to which International Laws govern non-International Armed Conflicts such as in Sri Lanka. Although Sri Lanka’s conflict had been categorized as one that defeated Terrorism or as a Humanitarian Operation, it has now come to be accepted as a non-International Armed Conflict. Despite this categorization of Sri Lanka’s conflict as an Armed Conflict, which particular International Laws are relevant to issues of accountability have not been explored.

The position advocated by me since 2008 was based on the ruling by the International Criminal Tribunal for former Yugoslavia (ICTY) appointed by the Security Council. My position was that the conflict in Sri Lanka was an Armed Conflict and as such the International Law that should govern the conflict was International Humanitarian Law (IHL). Furthermore, that IHL should apply to the whole territory up to the cessation of hostilities and beyond. The position advocated by others was that International Human Rights Law and International Humanitarian Law should apply concurrently. It is heartening to note that the latter group has now revisited their position and acknowledged that IHL applies up the end of hostilities which in the case of Sri Lanka was May 2009.

The UN official publication cited above 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).

The fact that there are two equally valid positions depends on one body of law being pre-eminent over the other. However, the pre-eminent law is IHL because the provisions of IHRL are derogated to the point that only the “hard core human rights” prevail during an Armed Conflict. Therefore, the task is not to condemn one and extol the other but to find which position would best serve the interests of the security forces and Sri Lanka.

All of the above is academic to many readers. However, its impact on Sri Lanka and in particular the fate of the security forces could be significant. Therefore, it is of extreme importance that a clear and unambiguous determination is made as to the International Laws that should regulate investigations relating to accountability – should it be IHL throughout the conflict and thereafter until conflict related issues are resolved, or IHL up to May 2009 with IHRL and IHL applied concurrently thereafter.

Such a determination should factor in the following statements in the Preamble to the Additional Protocol II of 1977 on which IHL is based. The relevant statements are: “Recalling furthermore that international instruments relating to human rights offer a BASIC (emphasis added) protection to the human person” and “Emphasizing the need to ensure a BETTER (emphasis added) protection for the victims of armed conflicts”. This underscores the pre-eminence of IHL in Armed Conflicts.

Unless and until these issues are resolved there would not be a clear remit to the judicial process particularly because the UNHRC of 2015 Resolution, A/HRC/30/L.29 states that the judicial mechanism should “investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable”. Since the words “as applicable” are vital there is a need to identify which International Laws are applicable to accountability related issues.

6 Responses to “International laws in armed conflict Part II”

  1. Dilrook Says:

    Thank you Neville for saying this.

    [Quote] Although Sri Lanka’s conflict had been categorized as one that defeated Terrorism or as a Humanitarian Operation, it has now come to be accepted as a non-International Armed Conflict. Despite this categorization of Sri Lanka’s conflict as an Armed Conflict, which particular International Laws are relevant to issues of accountability have not been explored. [Unquote]

    The problem is unqualified people trying to make sense of the war crimes issue. They naively think by not naming it war (armed conflict), the war crimes issue would go away!

    And the war (armed conflict) was non-international – it didn’t involve a confrontation across national boundaries between nations although international actors played a part.

  2. Fran Diaz Says:

    Some items to emphasize :

    * The fact that there was a Humanitarian Operation too must be emphasized all the time the inquiry at the UNHRC goes on.

    * Ceberus has pointed out under Mr Laduwahetty’s Part I of the article that : Organisations and Concerned Citizens as well as the GoSL ought to bring out a List which clearly states how Sri Lanka has demonstrated Humanitarian as well as Human Rights toward the Tamil people of Sri Lanka.

    * Also another point : that nearly a million Tamil people left Sri Lanka as Refugees to the west after the 1983 trumped up Riots. These people could enter the west ONLY as Refugees – hence the trumped up 1983 Riots. Today they form the Tamil Diaspora which supported the terror outfit the LTTE for nearly 30 yrs and continues to guide Separatism in Sri Lanka.

    * Every time there is a natural disaster in Tamil Nadu, there is an exodus of Tamil illegal migrants into Sri Lanka. This appears to be encouraged by INDIA. It is high time this fact is exposed and stopped. Tamil Nadu govt has to manage their disasters, whether drought or floods. Drought can be managed through desalination plants which could turn sea water to clean water and be run on solar energy. USA & Saudi as well as Israel manage the desert style life with desalination plants. Floods ought to be managed with proper drainage.
    Sri Lanka govt must not tolerate the excuse of floods & drought for Tamil Nadu to offload their poverty ridden Tamil Dalits into Sri Lanka to form Tamil Eelam.

  3. Ananda-USA Says:

    Fran,

    The Yamapalanaya was forced to REMOVE the ARMY CAMPS to PREVENT the army from stopping the illegal Kallathonis from entering Sri Lanka from INdia.

    Recently, there has also been an INCREASE in the number of Sri Lankan Tamils arrested in India for having entered India for various criminal activities, including the revival of LTTE-related terrorism.

    How can Sri Lanka EVER PROTECT its border from such VIOLATIONS when the National Government is COLLUDING with the Separatists to DISMANTLE OUR DEFENCES and ENABLE such threats?

    We need a PANA-ATHI Sri Lankan Patriot with a STRONG SPINE as President, to do what President Donald Trump is doing for the United States NOW!

    2017 may well be the year, we achieve that Patritic Goal!

    OUST the PARA-GATHI PANA-NATHI Yamapalanaya; Bring back ex-President Mahinda Rajapaksa to power!

    DESHA-PREMIN JAYAWEWA! Desha-Drohin Bangawewa!

  4. Fran Diaz Says:

    Ananda,

    Agree with you !

    YES, Sri Lanka must be protected, and our Arms Forces released from the false charge by the UNHRC of War Crimes.

    Deshapremita Jayawewa !

    ———–

    Tamil Nadu Tamils can be helped without dismembering Lanka.

    During times of Floods, the Flood Waters ought to be collected in suitable resavoirs to serve periods of Drought. TN has her Engineers to do the job. TN suffered Floods in 2015 and a Drought in 2016 which is continuing. Imagine if all the Flood water were collected to tide over the Drought now on …. if there is a will, there is a way.

    Re Lanka & Tamil Separatism : We have to solve this problem once and for all, and bring a lasting peace for both communities and Others of Lanka. Anyone is free to help Tamil Nadu Tamil folk to handle Floods & Droughts. No more illegal migrants to Lanka.

  5. Cerberus Says:

    Thank you, Mr. Ladduwahetty. The problem I see is that there is no will on the part of the current Yahapalanaya to eliminate the false war crimes charges against our War heroes. My3 is right now sitting very pretty. Ranil is very unpopular, as has always been. Yet My3 needs him and the supposed money launders in the UNP to prop him up. So long as the UNHRC is pursuing this nonsensical farce against Sri Lanka, My3 is fine since President Mahinda Rajapaksa and the JO is contained. Everything is in a holding pattern right now in Sri Lanka while watching what the new US foreign policies are going to be.

    As Dr. Dayan Jayantilleke has pointed out in his recent article, the election upset in the USA which put Donald Trump in power has created a window of opportunity for the GoSL to approach the new administration and make the case for the Sinhala people heard. Yet no one from the Yahapalanaya has made a move to approach the new US administration. Even the JO is not using this opportunity to raise the awareness of the UN and the US administration of the facts about the LTTE, their atrocities against the Sinhala people and Sri Lanka and what really happened during the conflict with the LTTE over 30 years. Instead, the Tamil diaspora is again on the move with the bags of money to buy over the new administration in the USA while our President is going round opening buildings, temples, celebrations in schools and talking platitudes to fool the masses while the real issues are being ignored.

    We must collect all the documents written by people like Neville Ladduwahetty, Sir Desmond De Silva, and D. M. Crane and others and send the documents to all those who are concerned in UNHRC and the USA. See: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121568
    Instead of doing that the Yahapalanaya became a co-sponsor of the motion against the country brought by the UNHRC Prince Zeid. We need able strong people such as Dr. Dayan Jayatilleke who in 2012 were very successful in pushing back the US sponsored war crimes charges against Sri Lankato yet again present the facts to the USA and the UNHRC.

    The main objective of the Yahap seems to be to keep MR and JO in check with the war crimes charges so that all the thieves in the Govt can fatten themselves and retire comfortably at the expense of the ordinary poor citizens. While the country is broke after the massive bond crime by the Central Bank report after report has been written and no action has been taken. Now the President has commissioned yet another report which too will be shelved since the persons who committed the crime were appointed by the UNP which is​ ​bribing the SLFP members by getting them luxury vehicles, subsidized food and other perks such as Rs. 100,000 a month plus money for each sitting and retirement benefits.

    My prediction is that everyone including the opposition seems to be compliant with the farce going on while the ordinary citizens are confused and frustrated by the cost of living​,​ lack of growth and the decline in the value of the rupee, and inflation and unemployment. Only the Colombians seem to be happy since there is no shortage of cocktail parties for them to attend.

  6. Ananda-USA Says:

    The Sri Lankan Counterterrorism Model: Intelligence Innovation Outside the Anglosphere
    Tue, Jan 31, 2017, 11:59 pm SL Time, ColomboPage News Desk, Sri Lanka.

    Jan 31 (Modern Diplomacy) In reading Open Source Intelligence (OSINT) of the ongoing counterterrorism operations in Iraq, Syria, and Libya, I have noticed a pattern in Islamic State’s “modus operandi”, that of an analogical spider.

    Spiders have eight legs and two body parts, including the head region (cephalothorax) and the abdomen. Most spiders have toxic venom, which they use to kill their prey. So, if the international community wants to get rid of ISIS, hypothetically speaking, they must get rid of ISIS’ cephalothorax, rather than fight with its eight legs. What I try to pinpoint here is that, while ISIS’s headquarters (cephalothorax) are in Syria, their means of survival (abdomen) depend on how much area they control in Iraq. Thus, before this ISIS “spider” transforms into a “multi-headed” and “multi-pronged” spider, the international community must target their headquarters in Syria.

    Although international intelligence agencies have feet of clay, particularly in dealing with an enemy of many different faces, I feel that they deserve a more involved role than just being the eyes and ears of any one nation. Recommendations for an appropriate tradecraft to achieve collective intelligence are the need of the day. Although there is no truth to search for, no absolute truth, since everything is subjective, the valuable role that intelligence agencies play in producing deterrence is paramount. Achieving a state of global terrorist deterrence is what I consider the essential argument.

    Sri Lanka, a small South Asian island nation located in the Indian Ocean, has been politically and economically destabilized as a result of ethnic conflict that has lasted over three decades. The Liberation Tigers of Tamil Eelam (LTTE), also known as the “Tamil Tigers”, a secessionist-cum-terrorist organization, fought against the Sri Lankan government to establish a separate homeland for Tamils in the northern and eastern parts of Sri Lanka. This organization was as a trendsetter for other terrorist groups around the world. Many organizations, including al-Qaeda, the Taliban, and now ISIS have used LTTE’s tactics as a template for terrorism. In May 2009, the Sri Lankan security forces militarily defeated the LTTE.

    The timely detection and precise ground intelligence received from the directorate of military intelligence was proven valuable, as LTTE’s offensive waves were received with intense military counter-attacks. The Sri Lankan security forces could finally claim that the Mullaittivu battle was reaching its final phase. Over 150 cadres were killed during the initial thrust while the rest were hunted down by the 2nd Commando Regiment, 12th Gajaba Regiment, 12th Gemunu Watch, and 8th Gemunu Watch troops during the last 48 hours of the final battle. As claimed repeatedly by defense experts, the fighting power of the LTTE was enormously weakened by the scarcity of military supplies and manpower. This contributed to the defeat of the LTTE. The last LTTE offensive attempt was initiated from the control of a 65-kilometer radius, reminding troops that the LTTE was still capable of planning, preparing and executing surprise raids on any advancing military. It was against this backdrop that security forces were forced to rethink strategy and implement unconventional warfare tactics, that is, to lead by military intelligence.

    By utilizing OSINT intelligence agencies can extract fantastic amounts of strategic intelligence. However, tactical intelligence depends on human intelligence (HUMINT) which refers to any information that can be gathered from human sources. It is no secret that the Sri Lankan security forces have been trying to strengthen their HUMINT gathering capacity for some time now. In fact, they have been openly recruiting former LTTE cadres and other Tamil militants who were working with security forces as “paramilitary” groups. In addition, the Sri Lankan Army’s Deep Penetration Unit (DPU) and/or Special Force Regiment (SF) also plays a vital role in the forces’ HUMINT gathering efforts. It can therefore be seen that the security forces’ HUMINT played a vital role. The military’s signal intelligence infiltrated and analyzed the LTTE’s communications and transmissions systems for the purpose of convincing these cadres to surrender. All in all, the fusion of the military’s SIGINT and the contribution of Amman’s HUMINT was an effective strategy.

    Given the status quo in Sri Lanka, it was very easy to conduct projects of psychological warfare, since security forces were moving in quickly and most of the non-hardcore LTTE cadres and leaders were in low morale within the organization. As a result of human nature, LTTE cadres prioritized their survival during those days. Nonetheless, security forces were not successful in the defection of LTTE top leaders like Banu, Soosai, Swarnam, Theepan, Pottu Amman, Lawrence, or Nadesan. This is because these men were married to female LTTE cadres and bore children together. Consequently, security forces sought young, but clever, LTTE cadres for the job. It was indeed a good strategy, proven by the fact that Karuna Amman was made a minister following his defection and by the fact that former LTTE child soldier Pillaiyan was appointed chief minister of the eastern province.

    As a terrorist organization that possessed an army, navy, and rudimentary air force, the LTTE set a threatening example for other terrorist groups and therefore they were not only a threat to the domestic stability of Sri Lanka but also to the security of the regional and global systems. This explains the support from the international community for the Sri Lankan government during its war against terrorism. This support contributed to the eventual annihilation of LTTE. By and large, the Sri Lankan security forces were attempting to engineer a defection within the LTTE, as they battled to destroy LTTE leadership. In other words, security forces were attempting to engineer defection against the “cephalothorax” of the spider, instead of fighting its eight legs in futility. The defection of LTTE’s top commander, Karuna Amman, along with two-thirds of the organization’s manpower created a desperate split within the LTTE, fatally weakening the organization. The Sri Lankan military intelligence exploited this situation and enlisted Karuna Amman and his cadres in the Sri Lankan army as a paramilitary group, making their fight against terrorism easier. Moreover, the killing of LTTE’s supreme leader Veluppillai Pirabhakaran reinforces the argument and importance of the spider analogy. This also reinforces the argument that military intelligence deserves a primary and active role in counterterrorism efforts.

    The importance of intelligence as capital in counterterrorism is further illustrated by the response to the September 11, 2001 terrorist attack in the United States, since the international community came together to share intelligence on terrorist organizations in order to dismantle their operations throughout the world. This essentially crippled the LTTE’s maritime logistics support to which their survival depended. The LTTE’s threat to global security was obliterated at the hands of an international collaboration of intelligence agencies that was not even primarily focused on the LTTE. Since the modus operandi and tradecraft of al-Qaeda, the Taliban, and the Islamic State are replicas of the LTTE in Sri Lanka, I believe that the international community is capable of combatting and defeating it by utilizing the same model that Sri Lankan military used against the LTTE. Unfortunately, so far this concept has not gained heavy traction with intelligence and military forces in the West, especially the Americans. This is a good example of where innovation in intelligence outside of the Anglosphere would provide excellent new methods and tactics for Western intelligence. If only Western intelligence would notice.

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