Peace for the World

Peace for the World
First democratic leader of Justice the Godfather of the Sri Lankan Tamil Struggle: Honourable Samuel James Veluppillai Chelvanayakam

Thursday, January 12, 2017


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January 12, 2017, 9:09 pm 
Former President Chandrika Bandaranaike receiving the report prepared by the Consultation Task Force on Reconciliation Mechanisms from leader attorney-at-law Manouri Muttetuwegama at the Presidential Secretariat on Jan. 3. Foreign Minister Mangala Samaraweera, Hindu Affairs Minister Swaminathan and Reconciliation State Minister Fowzie look on.

By Neville Ladduwahetty

With the recommendation by the Consultation Task Force on Reconciliation Mechanisms that a hybrid Court should conduct investigations into alleged violations committed during the conflict in Sri Lanka, the controversy as to the legitimacy of foreign participation has resurfaced. To address this issue it is best to start with the basics, namely the statement in the UNHRC Resolution.

Paragraph 6 of the UNHRC Resolution, A/HRC/30/L.29 of September 29, 2015, inter alia states: "… the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable…"

The Resolution calls for investigations into allegations of human rights AND international humanitarian laws. This presumes that both laws could operate simultaneously in the same territory over the same period. This is a seriously flawed notion in view of the material presented below. This material clearly demonstrates that "two different paradigms" govern human rights and international humanitarian law violations. Therefore, it is only after determining which laws should regulate the investigations that appropriately qualified personnel, whether foreign or national, could be selected to handle the investigation.

Paragraph 182 of the OISL Report of the UNHRC 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…" AND Paragraph 181 of the UNSG appointed Panel of Experts states: "International Humanitarian Law applies because the hostilities clearly met the threshold of an internal armed conflict…". Therefore, the "applicable" law should be International Humanitarian Law (IHL) since such laws should apply "…in the case of internal armed conflicts, (to) the whole territory under the control of the party, whether or not actual combat takes place there (International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case).

APPLICABLE LAWS TO REGULATE THE INVESTIGATIONS

An official publication of the ICRC titled "THE USE OF FORCE IN ARMED CONFLICTS: INTERPLAY BETWEEN THE CONDUCT OF HOSTILITIES AND LAW ENFORCEMENT PARADIGMS"(November 2013) states in its introduction: "In a situation of armed conflict , the use of lethal or potentially lethal force (hereafter ‘use of force’) by armed forces and law-enforcement officials is governed by two different paradigms: the conduct of hostilities paradigm, derived from international humanitarian law (IHL) and the law enforcement paradigm, mainly derived from international human rights law (hereafter human rights law)".

"The paradigms of the conduct of hostilities and law enforcement find their international legal basis in the legal regimes of IHL and human rights law. The IHL basic rules governing the conduct of hostilities were crafted to reflect the reality of armed conflict. They are based on the assumption that the use of force is inherent to waging war because the ultimate aim of military operations is to prevail over the enemy’s armed forces. First among those basic IHL rules is the principle of distinction. According to this principle, parties to an armed conflict must at all times distinguish between civilians and civilian objects on the one hand, and combatants and military objectives on the other hand and direct their attacks only against the latter.

Parties to an armed conflict are thus permitted, or at least are not legally barred from, attacking each other’s military objectives, including enemy personnel. By contrast, acts of violence directed against civilians or civilian objects are unlawful. Indeed, one of the main purposes of IHL is to spare them from the effects of hostilities. In elaborating the principle of distinction, IHL also prohibits inter alia indiscriminate and disproportionate attacks and obliges the parties to

the conflict to observe a series of precautionary rules in attack, aimed at avoiding or minimizing incidental harm to civilians and civilian objects. This set of rules (i.e. distinction, proportionality and precautions in attack) can be described as the main part of the conduct of hostilities paradigm. They regulate the means and methods of warfare.

Human rights law is based on different assumptions. It was initially conceived to protect individuals from abuse by their State. Its rules on the use of force in law enforcement essentially provide guidance on how force can be used by State agents when it is absolutely necessary in self-defence; to prevent crime, to effect or assist in the lawful arrest of offenders or suspected offenders; to prevent the escape of offenders or suspected offenders and in quelling a riot. In brief, human rights law regulates the resort to force by State authorities in order to maintain or restore public security, law and order. The essence of the principles governing the use of force under law enforcement in human rights is that lethal force may be used only as last resort in order to protect life, when other available means remain ineffective or without any promise of achieving the intended result.

From the foregoing it is clearly evident that the situation in Sri Lanka was such that Human Rights Laws were inapplicable to the conflict. In view of this reality it is beyond comprehension how the UNHRC could incorporate provisions of human rights laws in addition to international humanitarian laws in the Resolution. The fact that the Government as well as the Task Force has accepted this contradiction without question reflects on the competencies of those associated with Geneva related activities. .

CONCLUSION

Since the OISL Report of the UNHRC and the Report of the UNSG appointed Panel of Experts both have concluded that the conflict in Sri Lanka was an "armed conflict", the applicable law should be International Humanitarian Law. As stated in the official ICRC Publication cited above, the investigations should then be on the basis of the "hostilities paradigm" and nothing more. Furthermore, such a paradigm should be applicable over the whole territory of the State and extend beyond the cessation of hostilities (ICTY in the Tadic case).

The fact that the Resolution calls for investigations to be regulated by both International Humanitarian AND Human Rights Laws amount to alleged violations being regulated by "two different paradigms". This is a seriously flawed notion because both Laws cannot exist at the same time over the same territory. Therefore, the ONLY applicable law is none other than International Humanitarian Law or "hostilities paradigm". Under the circumstances, for the Sri Lankan Government to have co-sponsored the Resolution without question and for the Task Force to meekly accept it without clarification reflects poorly on how issues relating to Geneva are handled.

The inability of UNHRC to appreciate fundamental differences between IHL and human rights laws is an impediment to the development of a clear remit to the proposed judicial mechanism. The focus should therefore be to first determine which paradigm is applicable to the investigations. Such a clarification should involve a revision to the current Resolution or in the least an understanding with the UNHRC that investigations should be regulated ONLY by International Humanitarian Law and not both.

Since International Humanitarian Laws are codified as to what is and what is not a violation during an armed conflict, the judicial process boils down to evaluating what actions amounted to violations of the "hostilities paradigm". Therefore the judicial process is really not a matter of expertise in International Humanitarian Law but on an objective evaluation of what would constitute a violation or not under provisions of International Humanitarian Law. Such a process is well within the capacities of existing judicial competencies. If on the other hand, the issue is one of credibility, all that is needed is a structural arrangement in the process to ensure adherence to due process in the conduct of the investigations.

A pertinent fact that has been overlooked by the Task Force is the need for constitutional amendments to accommodate the recommendations at issue. This was perhaps realised by the President and PM when they both said there would be "no foreign judges". Since such a recommendation would clash with Article 4 of the Constitution and a precedent has been created that Article 4 should be read with Article 3, any constitutional revisions would require a two-thirds majority of Parliament as well as a referendum. This being fundamental to the overall recommendations of the Task Force the omission brings into question the competence of the Task Force.
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