By Neville Ladduwahetty Courtesy Island

The fact that the Government did not exploit these internationally accepted provisions to restrict the impact of the OHCHR report, but instead, co-sponsored the resolution on Sri Lanka is to be deeply regretted. Since the findings in the report are not mandatory it may not be too late to reevaluate at least some of the “principal findings” since para. 1115 states that the “findings listed below are analysed primarily within the framework of international human rights law”, when in fact all of the findings should be analysed within the framework of international humanitarian law and the rulings of International Tribunals. Furthermore, even the conclusions reached and the recommendations made should be revisited on the basis of International humanitarian law and rulings by International Tribunals.

The UN Human Rights Council is mandated to “promote and protect Human Rights for All”. However, the report by OISL for the OHCHR states in paragraph 171that ” OISL has conducted its investigation within the framework of international human rights law, international humanitarian law and international criminal law”. Considering that the Report’s conclusions and recommendations are based on a remit that goes way beyond lawful mandate, the validity of the report becomes questionable.

Paragraph 182 of the OISL 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…”. The report thus acknowledges that the conflict in Sri Lanka had reached the internationally recognized threshold of an Armed Conflict. Salient from this categorization are the following:

1. That the applicable law during the course of the Armed Conflict (February 2002 to May 2009) is International Humanitarian Law (IHL), with the ICRC as the accepted custodians of IHL.

2. That all parties to the conflict are “bound equally by the relevant rules of customary international law applicable to non-international armed conflict” (Paragraph 183).

3. That there is derogation of Human Rights depending on the intensity of civil unrest. Such derogation culminates in what is recognized as “hard core” of Human Rights during an Armed Conflict.

An ICRC publication of October 2002 titled “International humanitarian law: answers to your questions” states: “The international 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 human rights” (p. 37).

The recognition that human rights are derogated during conflicts or disturbances is also reflected in Sri Lanka’s Constitution. Article 15 Clauses 7 and 8 of Chapter III titled FUNDAMENTAL RIGHTS states:

(7) “The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13 (1), 13 (2) and 14 shall be subject to such restrictions as may be prescribed by law in the interest of national security…”

(8) “The exercise and operation of fundamental rights declared and recognized by Articles 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with maintenance of public order, be subject to such restrictions as may be prescribed by law…”.

The fact that the OISL report ignores recognized restriction of human rights during conflict both nationally and internationally means the conclusions reached and the recommendations made in the report are flawed. Furthermore, the OISL report is critical of the conduct of the Government after hostilities ceased in May 2009, not realizing that the International Tribunal for former Yugoslavia (1995) ruled that “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until…in the case of internal conflicts, a peaceful settlement is reached. Until that moment, international humanitarian law continues to apply in the… whole territory under the control of a party, whether or not actual combat takes place there”.

A further fact that should be borne in mind is that the UN Charter on Human Rights, Article 11, the Constitution of Sri Lanka Article 13 Clause 6, as well as the ICRC ruling cited above recognize the “non-retroactivity of the law” pertaining to innocence/guilt regarding offences.

The fact that the Government did not exploit these internationally accepted provisions to restrict the impact of the OHCHR report, but instead, co-sponsored the resolution on Sri Lanka is to be deeply regretted. Since the findings in the report are not mandatory it may not be too late to reevaluate at least some of the “principal findings” since para. 1115 states that the “findings listed below are analysed primarily within the framework of international human rights law”, when in fact all of the findings should be analysed within the framework of international humanitarian law and the rulings of International Tribunals. Furthermore, even the conclusions reached and the recommendations made should be revisited on the basis of International humanitarian law and rulings by International Tribunals.

COMMENT on RECOMMENDATIONS

In addition the Government should seek exemption of recommendations that impact on the internal affairs of a sovereign State on grounds of non-intervention. For instance, general recommendations and those pertaining to Institutional reforms and in particular those relating to Justice are a clear intrusion into the internal affairs of a sovereign State in complete violation of Article 2 Clause 7 of the UN Charter.

This Article states:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter…”

Therefore, the Government is on solid ground to request the OHCHR to revisit those recommendations that are “essentially within the domestic jurisdiction” of Sri Lanka. If the Government fails to address this issue, in particular aspects relating to the section on justice, there is a possibility that the public could lose confidence in the rulings of Courts and Sri Lanka’s judicial system.

CONCLUSION

The OISL Report reveals that the OHCHR has achieved two major objectives at the expense of Sri Lanka.

1. The Sri Lankan experience has sanctioned the OHCHR to expand its scope of operations from addressing issues relating only to its mandate of International Human Rights Law, to include issues relating to International Humanitarian Law. There has been no official revision of the mandate by the General Assembly.

2. The OHCHR has invited itself “to establish a full-fledged country presence to monitor the human rights situation.” , i.e., a permanent presence to look over Sri Lanka’s shoulder, and to monitor the situation and report favourably/ unfavourably to suit the geopolitical interests of major powers sponsoring the Resolution.

Considering the idealism with which the UN Declaration of Human Rights was created following the end of WWII, it is indeed a sad day that the UN has now become a pawn in the hands of big power politics. In this background, small countries will have to be extra vigilant if they are to survive as free and independent States. Sri Lanka has arrived at such a cross-road. The choices it makes now would determine its future destiny.