Relevance of international laws in Geneva process



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By Neville Ladduwahetty


Dr. Udugama addressing the media recently

Evidence of derogation of Human Rights prevails in most countries because of threats from terrorism. For instance, the introduction of the Patriot Act of the US following the 2001 terrorist attack in New York curtails many civil liberties through invasive surveillance by the NSA. With the recent terrorist attack in Paris, security measures are bound to be strengthened in many countries resulting in the derogation of Human Rights. Attempts to dismantle Sri Lanka’s PTA appear foolish in a background where there is a global need to be extra vigilant about threats from multi-dimensional sources. The derogation of Human Rights varies and reaches a minimum - the "Hard Core" of Human Rights during an Armed Conflict.

In the course of a media briefing Dr. Udagama, the present Chairperson of the Human Rights Commission, has indicated that "the HRC intends to play a pivotal role in shaping the state policy…" (The Island of Nov. 17). The Island report further says: "Commenting on the Geneva process, reconciliation and transnational justice, Dr. Udagama asserted that the entire process should be based on human rights law".


The UNHRC’s OISL report, the UNSG’s Panel of Experts report (Darusman report) and the Paranagama report all have categorised the conflict in Sri Lanka as a Non-International Armed Conflict. Consequently, the applicable law is International Humanitarian Law (IHL) and NOT International Human Rights Law (IHRL), because IHL governs the conduct of parties to a Non-International Armed Conflict.


This fact is unequivocally stated in Article 1 (1) of the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict (Protocol II), 8 June 1977.


RELEVANCE OF IHL


Article 1 (1) states: "This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 …shall apply to all armed 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 its territory as to enable them to carry out sustained and concerted military operations…".


Article 1 (2) states: "This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature as not being armed conflicts".


Paragraph 182 of the UNHRC’s OISL report 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…"


Paragraph 291 of the Paragama Commission report states: "In the view of the Commission the conflict between the SLA (Sri Lankan Army) and the LTTE was a non-international armed conflict governed by the body of IHL applicable to such conflicts".


The Sri Lanka HRC needs to appreciate that while the conflict between the Government of Sri Lanka and the LTTE had reached the threshold of a Non-International Armed Conflict and therefore IHL applies, the acts of violence associated with the JVP had not reached such a threshold. Therefore, in the case of violence associated with the JVP the applicable law is Human Rights Law. The inability to appreciate the distinctions between Humanitarian Law and Human Rights Law and the circumstances for their applicability has plagued Sri Lanka ever since it had to address accountability related issues and unfortunately that confusion continues to this day.


The question is whether the primary objective of the Security Forces was to militarily defeat the LTTE or whether to save the civilians taken hostage by the LTTE. If militarily defeating the LTTE was the primary objective separating the civilians from the clutches of the LTTE becomes part of military strategy. On the other hand, the alternative of saving the civilians as the primary goal and defeating the LTTE as a secondary goal was not a viable option because of the refusal of the LTTE to surrender or seek sanctuary elsewhere. With such a determination by the LTTE the civilians could NOT be saved without military defeating the LTTE. These circumstances underscore the applicability of Humanitarian Law throughout the conflict and thereafter in post-conflict operations relating to combatants and non-combatants.


INTERNATIONAL HUMAN RIGHTS LAW


Human Rights on the other hand are essentially international rules initiated and established by the UN, whereby individuals and groups can expect and/or claim certain entitlements from their Governments. Numerous non-treaty based principles and guidelines form part of "soft law" of Human Rights (ICRC, Advisory Service). The main treaty sources of Human Rights are the UN Declaration on Human Rights, International Covenant on Civil and Political Rights and on Economic and Social and Cultural Rights as well as a host of other Conventions. Both "soft laws" and treaty laws of Human Rights apply mostly during times of Peace. However, a degree of derogation of Human Rights and Civil Liberties are recognized as necessary depending on the extent of threats to the security of a State. However, certain Human Rights are not derogated under any circumstances. They are identified as the "Hard Core" of Human Rights Law. These are the right to life, prohibition of torture or cruel, inhuman or degrading treatment or punishment, prohibition of slavery and servitude and the prohibition of retroactive criminal laws (Ibid).


Evidence of derogation of Human Rights prevails in most countries because of threats from terrorism. For instance, the introduction of the Patriot Act of the US following the 2001 terrorist attack in New York curtails many civil liberties through invasive surveillance by the NSA. With the recent terrorist attack in Paris, security measures are bound to be strengthened in many countries resulting in the derogation of Human Rights. Attempts to dismantle Sri Lanka’s PTA appear foolish in a background where there is a global need to be extra vigilant about threats from multi-dimensional sources. The derogation of Human Rights varies and reaches a minimum - the "Hard Core" of Human Rights during an Armed Conflict.


CONCLUSION


Despite this body of legal opinion from international experts, Dr. Udagama has commented that "the entire process should be based on human rights law", which amounts to a total rejection of the body of recognized international collective opinions. The comment attributed to Dr. Udagama could therefore either be due to misreport in The Island, or the current Sri Lanka HRC and Dr. Udagama have collectively decided to revisit the facts and circumstances associated with the conflict and concluded on taking a radically different interpretation namely, that the conflict in Sri Lanka was NOT an Armed Conflict. The motivation for such a dramatically different interpretation could be driven by the compulsion of the Sri Lanka HRC "to play a pivotal role in shaping state policy".


If The Island report is correct, the Sri Lanka HRC has concluded that that the conflict was NOT an Armed Conflict as defined by Protocol 3. The impact on Sri Lanka as a result of the position taken by the Sri Lanka HRC would be to categorize acts such as No-Fire Zones, Shelling of hospitals, shortfalls in delivery of food, medicine and other humanitarian aid to the civilians and post-conflict treatment of combatants and non-combatants as Human Rights violations, whereas all of them could be explained and found acceptable under provisions of International Humanitarian Law applicable to Non-International Armed Conflict. Therefore, without arbitrarily declaring that the Geneva process should be based on Human Rights Law, the task for Dr. Udagama and the HRC is to first establish grounds for rejecting the UNHRC’s categorization that the conflict in Sri Lanka was a Non-International Armed Conflict.


 
 
 
 
 
 
 
 
 
 
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