The Character Of The Conflict And Accountability
By Laksiri Fernando -February 14, 2014
Dr. Laksiri Fernando
Neville Ladduwahetty has written an interesting but controversial article toThe Island newspaper (11 February 2014) titled “Accountability in non-international armed conflicts.” His title expresses his view on the character of the conflict but not the conclusion. It is more interesting to note his conclusion which he begins by saying,
“The belief among many is that a national inquiry with focus on accountability would be in the best interest of Sri Lanka. I too was of that view. But on deeper reflection the complexities and impracticalities involved in such an exercise makes it counterproductive to reconciliation which should be the final goal if internal conflicts are not to recur.”
Does this mean that he now agrees for an international inquiry? Obviously not. He has strongly argued that at the conclusion of a non-international armed conflict, whether by peace agreement (i.e. South Africa) or by defeating one party by the other (Sri Lanka), it is best not to investigate the accountability at all as it would be counterproductive to ‘reconciliation’ as he interprets. According to him what the government now should do is the following.
Sri Lanka’s position in Geneva should be that although Sri Lanka has every right for its actions to be judged by provisions of International Humanitarian Law, as a responsible Government it performed functions and adopted military strategies that were well over and above those required by Rules of War for the primary purpose and long-term goals of post-conflict reconciliation. This should precede the Progress Report on the Action Plan. Presenting the progress on the Action Plan WITHOUT FIRST PRESENTING IT IN THE LEGAL CONTEXT would deny Sri Lanka the opportunity to take a dignified stand without having to plead its case.
He does not completely deny that ‘Sri Lanka has every responsibility (although he says right) for its actions to be judged by provisions of International Humanitarian Law.’ What should be added here is also ‘international human rights law.’ But instead of ‘having to plead its case,’ according to him, Sri Lanka should ‘take a dignified stand’ or assert in Geneva saying that “as a responsible Government it performed functions and adopted military strategies that were well over and above those required by Rules of War.”
There is nothing wrong in asserting innocence, and it is like ‘pleading not guilty.’ But the question is how those assertions can be verified in the rule of (international) law. His proposition leaves open for the UNHRC to propose an international investigation, if the required votes are garnered, without Sri Lanka objecting or proposing an alternative.
