By Neville Ladduwahetty

In 2014 the UN Human Rights Council by resolution A/HRC/25/L.1/Rev.1 authorized the High Commissioner for Human Rights To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability…” (Clause 10b of Resolution).

In pursuance of this resolution, a Report titled OHCHR Investigation on Sri Lanka” was made public. The following analysis relates to this report.

The Methodology adopted carried out a desk review of existing material, including Government publications, international and Sri Lankan Non-Governmental Organization (NGO)/civil society reports, the report of the LLRC and other commissions, audio-visual material and satellite images, reports of the United Nations Special Procedures and treaty bodies” (para. 20).

Another key source of information” was the authorization by the High Commissioner to access archival material gathered by the SG’s Panel of Experts, access to which had been denied to the Sri Lankan Government and others for decades (para. 22).  Such conduct was unacceptable as the Agency was expected to be neutral.  Furthermore, using material denied to the affected parties was clearly unethical.  For these reasons, the conclusions and recommendations proposed in the Report are unacceptable as they bring into question the credibility of the UNHRC itself.

As stated before, the remit to the OHCHR was to undertake a comprehensive investigation”.  The OHCHR by its own admission carried out only a desk review” of material most of which had been gathered by others.  This clearly does not amount to a comprehensive investigation”.  Ironically, the report makes the charge that the LLRC was not established as an investigative commission” (para. 1217).  Since the OHCHR has failed to meet the mandate of the Human Rights Council, the report is unacceptable on this count.

Paragraph 182 states: Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein…”.  More particularly, since the conflict is acknowledged to be not of an international character”, the applicable law is Humanitarian Law and NOT Human Rights Law.  The guardian of Humanitarian Law is accepted as being the ICRC and NOT the UNHRC.  The UNHRC neither has the mandate from the General Assembly, nor does it have the capability or the competencies to deal with Humanitarian Law issues.  Thus, the OHCHR is NOT the Agency to comment on accountability issues arising from conduct relating to Non-international Armed Conflict where Humanitarian Law applies.  Thus, the report is unacceptable because the remit of the OHCHR is limited Human Rights/

ACCOUNTABILITY MECHANISM

CHAPTER V of the REPORT establishes the Legal framework” for judging accountability.  The report states that Sri Lanka is a State party to nine of the core human rights treaties (para. 172).   It also states that Sri Lanka is a party to four Geneva Conventions of 12 August 1949.  Notwithstanding these commitments it must be understood that although Sri Lanka may be a party to these instruments, the scope of its operations within Sri Lanka is subject to the extent to which the provisions of these instruments are incorporated into Domestic Law.  For instance, para. 1243 acknowledges that other international crimes, notably war crimes, crimes against humanity, and the crime of enforced disappearances, have yet to be defined under domestic law”.    However, some provisions of Humanitarian Law have come to be accepted as Customary Law by most nations.  Therefore, the accountability mechanism has to operate within the boundaries of Domestic law, Customary law, Treaty law and the Constitution of Sri Lanka.

The key recommendation of the OHCHR for an accountability mechanism in the form of hybrid special courts, integrating international judges, prosecutors, lawyers and investigators” (para. 1246) should therefore be viewed from this perspective.  The justification presented for this recommendation is that the OHCHR is of the opinion that domestic courts are not familiar with the international criminal jurisprudence that has evolved and may have no experience of dealing with complex criminal trials involving crimes under international law” (para. 1245).  However, whatever crimes that were committed has to be judged in relation to the corpus of Domestic Law (Article 13 Clause 6 of Sri Lanka’s Constitution in particular and related provisions), which international judges, prosecutors and lawyers are quite unfamiliar with and would need to be assisted by local lawyers.   Therefore, at the end of the day how productive would international legal participants be in the proposed accountability mechanism?

It is recognized that the accepted guardian of International Humanitarian Law is the ICRC.  The ICRC has developed a whole corpus of material that covers both Treaty laws and Customary laws relevant to Armed Conflict.  This material is available to the legal fraternity in Sri Lanka, and in fact has influenced and guided previous commissions.  It is surely a misguided belief and a misplaced notion that complexities of international criminal jurisprudence are beyond the competencies of legal professionals in Sri Lanka.  If in the event there is a need to engage expert opinion either national or international, as was done by the Paranagama Commission, it would not present a problem.  Therefore, considering the particularities of the situation it would be more appropriate that a Domestic body should evaluate all the existing evidence in the context of International Humanitarian Law rather than a Hybrid Panel to investigate issues relating to accountability.

EVALUATING INCIDENTS on the basis of HUMANITARIAN LAW   

The core issue is to evaluate the conduct of operations during the Armed Conflict in Sri Lanka within the legal framework of International Humanitarian Law.  In this regard the task at hand is to evaluate existing evidence of charges relating to No Fire Zones; supply of humanitarian aid; relevance of principles of distinction and proportionality in the Sri Lankan context; screening and deprivation of liberty; etc. etc. within the framework of Humanitarian Law and not Human Rights Law.

No Fire Zone

No Fire Zones (NFZ) as recognized Zones for the safety of civilians and others not taking a direct part in a conflict have a legal basis ONLY IF there is mutual agreement in writing between parties to the conflict (Rules 35 and 36 of Customary International Humanitarian Law – IHL).  In the case of Sri Lanka, not only was there was NO such agreement but this was compounded by the fact that the LTTE mingled among civilians with their military hardware and continued to engage the Army with the result that civilians were taken hostage to use them as a human shield.  The former is prohibited by Rule 96 of Customary IHL and the latter is prohibited by ICRC (Vol. 87, No. 857 March 2005).

Para. 1146 of the OISL report states: Many of the incidents examined occurred in the NFZs that were declared unilaterally by the government…Subsequent fighting in or around these Zones caused considerable civilian casualties, raising questions concerning the respective responsibilities for these civilian deaths and injuries, and damage to  civilian objects”’.

Distinction and Proportionality

It is within the context of Distinction and Proportionality that whatever violations that occurred should be evaluated, bearing in mind that the framework is International Humanitarian Law.  Furthermore, the context was such that principles of distinction and therefore proportionality did not apply because By the end of January 2009, the LTTE was severely diminished as a fighting force… and had to rely on new and ill-trained recruits to fill its ranks” (para 86)…and during this period there was forced recruitment of adult and children by the LTTE and coercive measures to stop civilians leaving the conflict area” (para. 87).  These recruits and even LTTE cadres were in civilian clothes making the principles of distinction and proportionality inapplicable, and compounding the principle of precaution. Para. 1267 states: Counting or estimating the exact number of civilian casualties during the different stages of the armed conflict is impossible”.

Impact of Hostilities on Civilians

The obligation to avoid locating military objectives within or near densely populated areas, to the extent feasible as well as taking all feasible measures to remove civilian persons and objects under the control of the party to the conflict from the vicinity of military objectives” (para.187) is prohibited by Rules 23-24 of Customary Law.  The fact that the LTTE regularly violated these provisions is an accepted fact.  ICRC Rules 23-24 state: International humanitarian law prohibits the location of military objectives near densely populated civilian areas”.

Screening and Deprivation of Liberty

Article 2 (2) of Additional Protocol II of 1977 states: At the end of the armed conflict, all persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to such conflict, as well as those deprived of their liberty or whose liberty has been restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restrictions of liberty”.  Since all the Displaced were related to the conflict, the Government was entitled to limit their liberties until issues relating to the conflict were resolved.

The International Tribunal for former Yugoslavia (1995) stated: 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 reached.  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”.

The post-conflict displaced represented a clear security risk, and the Government had an obligation by the rest of the country to ensure that procedures adopted to separate former combatants from the rest were thorough for the sake of the security of the larger population.

Deprivation of Humanitarian Aid

In an Armed Conflict where International Humanitarian Law applies, parties to the conflict are expected to ensure that humanitarian aid is available ONLY to the population under their care.  If they do not have the resources to do so, they are expected to seek the assistance of Agencies who are in a position to furnish such humanitarian aid.  A further obligation is to permit access to Aid Agencies for the delivery of humanitarian aid.  Under no circumstances is a party to an internal conflict expected to furnish humanitarian aid to the population under the care of the other party or parties to the conflict. (ICRC sources).

Therefore, the Government of Sri Lanka was under no obligation to furnish humanitarian aid to the population under the care of the LTTE.  The only obligation the Government had to meet was to permit access for humanitarian aid Agencies to areas under the control of the LTTE.  Notwithstanding these obligations the Government went out of its way to work with aid Agencies to furnish humanitarian aid to the population in the care of the LTTE.  Thus, charges that estimates of the population needing aid were deliberately underestimated are baseless; perhaps being made due to misreading of obligations under rules of International Humanitarian Law.

The comments in the OHCHR Report in respect of issues cited above are based on Human Rights Law, while only acknowledging that certain incidents need to be evaluated from the perspective of International Humanitarian Law.  This is evident from para. 1115 which states: While the findings listed below are analysed primarily within the framework of international human rights law, it is important to note that in cases in which the incident is linked to the armed conflict, relevant rules of treaty and customary international humanitarian law apply” (Part 3, XVII. Principle findings of OHCHR Investigations on Sri Lanka).

CONCLUSION

The OHCHR Report on Sri Lanka is unacceptable for the following reasons:

• The UNHRC Resolution specifically mandates the OHCHR to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes”. The report acknowledges that what was undertaken was a desk review”, primarily of existing material.  Therefore it does not meet the threshold of a comprehensive investigation”.
• The report acknowledges that Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka…”. e., the applicable law is International Humanitarian Law.  The General Assembly mandate granted to the UNHRC relates ONLY to International Human Rights Laws.  This is evidenced from the remit in the Resolution where it calls upon the OHCHR to investigate violations relating to human rights and related crimes”.  However, the OHCHR does NOT have the authority or the competencies to investigate violations relating to International Humanitarian Law.
• In order to function within the remit of the OHCHR the report interprets violations within the framework of International Human Rights Law when the rightful framework to review all material should have been International Humanitarian Law. The ICRC is the guardian of International Humanitarian Law for investigating violations that fall within the ambit of an Armed Conflict.
• Differences in the interpretation of any incident becomes a violation when interpreted from a Human Rights perspective, and a justifiable act when interpreted from a Humanitarian Law perspective during an Armed Conflict. These differences are addressed in a few examples cited.

Flawed interpretations have been the source for the conclusions reached and the recommendations made to the Government of Sri Lanka, the United Nations and Member States.  This makes the report unacceptable.  Therefore, the Government should request the OHCHR to handover all material in their possession for the Government to set up a multi-disciplinary body to evaluate the material and submit a report that addresses accountability within the context of an Armed Conflict, with recommendations to improve the Human Rights situation in Sri Lanka. Only a Domestic body is equipped to handle accountability issues within the context of Domestic Laws and Human Rights issues in the context of Domestic values.

Neville Ladduwahetty

September, 24, 2015.