By Neville Ladduwahetty Courtesy The Island

Despite the repeated and continuing references to war crimes and crimes against humanity alleged to have been committed during Sri Lanka’s armed conflict, the actual wording in Paragraph 6 of UNHRC Resolution 30/1 is as follows:” …a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law”. Therefore, the first order of business for any judicial mechanism is to establish whether International Human Rights Law and/or International Humanitarian Law applies separately or concurrently, during an armed conflict.

Human rights violations occur during civil disturbances. However, it is only when such violations reach the threshold of an armed conflict that humanitarian violations occur. In the case of Sri Lanka, it is an accepted fact that the conflict reached such a threshold with the signing of the Peace Accord on February 22, 2002.

ESTABLISHING the CONTEXT for the JUDICIAL MECHANISM

The fact that the conflict in Sri Lanka was an armed conflict was acknowledged by the UN appointed Panel of Experts (PoE) and by the Office of the High Commissioner for Human Rights (OHCHR) in their respective reports.

The UN appointed Panel of Experts in their report stated: “There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct of both government and the LTTE”.

Paragraph 182 of The OHCHR report states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka”.

Paragraph 183 goes on to state: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.

Therefore, it can be concluded without any doubt whatsoever, that the conflict in Sri Lanka was an “internal armed conflict” and the parties to the armed conflict “are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.

INTERNATIONAL LAWS in ARMED CONFLICT

The two undisputed authorities cited regarding 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 – International Humanitarian Law.

1. 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 BEYOND (emphasis added) 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”. 

2. ICRC Opinion:

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 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”.

3. According to the UN appointed Panel of Experts the applicable law as a result of the armed conflict is: “international humanitarian law is the law against which to measure the conduct of both government and the LTTE”.

Therefore, the undisputed conclusion should be that the conflict in Sri Lanka was an armed conflict, and that the applicable law is International Humanitarian Law.

However, there is a considerable body of opinion that claims that both Human Rights and Humanitarian Laws exist concurrently during an armed conflict. What they do not say is that human rights that exist during times of peace are seriously derogated during an armed conflict; a fact acknowledged by the International Court of Justice. Thus, what human rights remain are identified as the “hard core of human rights”, listed in Article 4 of the International Covenant on Civil and Political Rights (ICCPR). instance, aAn 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 that “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).

Article 4 of the Covenant referred to above states: “In a time of public emergency which threatens the life of a nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations…to the extent required by the exigencies of the situation…”. Article 4 (2) states: “No derogation from articles 6,7,8 (paragraphs 1 and 2)11,15,16 and 18 may be made under this provision”. Article 6 is “right to life; article 7 is torture or cruel, inhuman treatment; and article 8 is slavery. …”.

The fact that Sri Lanka officially proclaimed that there was an emergency that threatened the life of the nation is acknowledged in the report by the Office of the High Commissioner for Human Rights (OISL). Paragraph 175 states: “OISL notes that Sri Lanka has submitted a Declaration of a State of emergency dated 30, may 2000 derogating from articles 9 (2), 9 (3), 12 (1), 12 (2), 14 (3), 17 (1), 19 (2), 21 and 22 of the ICCPR.

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 clearly validated.

CONTEXT for JUDICIAL REVIEW

Based on the material presented above, the conclusions that justifiably could be reached are:

1. That the conflict in Sri Lanka was an armed conflict starting February 22, 2002.

2. Therefore, the applicable law is International Humanitarian Law, along with those provisions of International Human Rights law that are NOT derogated, such as those identified in Article 4 of the ICCPR Covenant.

3. Human Rights Laws applicable during an armed conflict are incorporated in Additional Protocol II of 1977.

4. Humanitarian Laws applicable during an armed conflict are also incorporated in Additional Protocol II of 1977.

Accountability:

5. Therefore, Additional Protocol II of 1977 should be the legal framework that should guide the evaluation of any violations during the armed conflict.

Since the ICRC as the internationally accredited authority has codified what constitutes violations of human rights and humanitarian law based on provisions of Additional Protocol II of 1977, there is absolutely no need for a judicial mechanism as is being called for in the UNHRC Resolution 30/1. Instead, what is needed is for any person with evidence of a nature that would stand up in the Courts to file charges AGAINST anyone guilty of having violated any provisions listed in the ICRC Document titled “Customary Law” Vol. 87, No. 857, March 2005.

CONCLUSION

The materials presented above are the International Laws and the associated hard facts connected with the armed conflict that occurred in Sri Lanka. It is evident from the foregoing that issues associated with the armed conflict are straight forward law and order issues, that are within the capabilities of Sri Lanka to handle. Instead of presenting facts such as those cited above for Sri Lanka to go to inordinate lengths of co-sponsoring resolutions in order to claim “ownership” of the reconciliation process is stupid because its effect is to undertake commitments that require constitutional and legislative changes that would even involve the consent of the People at a referendum.

The UNHRC Resolution 30/1 and all that goes with it are politically motivated moves to enable the International Community dominated by the West to keep Sri Lanka on a leash as long it serves their geopolitical interests under the cover of ‘reconciliation’. By co-sponsoring the resolution the government has become a willing party to this duplicity.

Judging from the skepticism with which the findings by an independent lab in the USA were received about the mass grave in Mannar, there is no doubt that whatever conclusions reached following a judicial inquiry, would depend on their political and strategic interests. If as reported in the British media, the reaction both locally and internationally would be unimaginable if after a judicial inquiry a Sri Lankan prosecutor found only one out of sixteen soldiers guilty of murder due to “insufficient evidence” after forty-seven (47) as it was in UK following an inquiry into the Bloody Sunday massacre in Northern Ireland. This massacre resulted in thirteen people being killed and fifteen others injured on 30 January 1972, when troops of the 1st Battalion of the Parachute Regiment fired on demonstrators during a civil rights march in Derry, Northern Ireland, despite a public inquiry in 2010 under Lord Saville having concluded that the killings had been “unjustified and unjustifiable”. Accountability in such contexts and with such attitudes would not have any meaningful outcomes.

The fact that Sri Lanka has become a victim of international machinations is evident from the approach adopted by the current government. How Sri Lanka could get out of this trap would clearly depend on the professionalism with which issues relating to the armed conflict are handled by a future Sri Lankan Government. The question is whether Sri Lanka would ever have the good fortune to have a government that could meet such a challenge.

Tags: UNHRS