Sri Lanka’s separatist armed conflict



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Prince Hussein

By Neville Ladduwahetty


The UN High Commissioner for Human Rights Zeid Al Hussein has made insulting and degrading comments about Sri Lanka’s judiciary in particular, and other institutions of the sovereign State, perhaps in a bid to humiliate and badger Sri Lanka into accepting international participation in the accountability mechanism. His efforts have turned out to be a diplomatic disaster, because what is realistically possible in Sri Lanka falls far short of the promised build-up contained in the UNHRC Resolution.


The approach adopted by the High Commissioner reflects an ignorance of the Constitutional constraints involved. These Constitutional constraints apply to any international involvement in any capacity, be it as Judges, Prosecutors, etc., if it involves revising existing judicial mechanisms in place, because of provisions in Article 4 and its relationship to Article 3 in the Constitution. Even Sri Lanka’s Foreign Ministry does not seem to be aware of these limitations. However, having subsequently realized the limitations involved, he did concede that "Whatever we see from our side, it’s your sovereign right to decide."


Sovereignty is the context and the only context to judge the manner in which the Separatist Armed Conflict was conducted. Despite references to defeating terrorism, the ideology driving the conflict initiated by the Tamil leadership at Vaddukodai in 1976, and very much alive even today ,was the "Creation of a Separate State – Tamil Eelam". Therefore, the conflict was a Separatist war that reached the threshold of an Armed Conflict; a threshold that has finally come to be acknowledged both nationally and internationally. Thus, International Humanitarian Law is what applies, as set out in "Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.


THE SEPARATIST ARMED CONFLICT


The Eelamist ideology was essentially to create a separate state consisting of the Northern and Eastern Provinces of Sri Lanka. It was because of this ideology that attempts to broker a negotiated settlement, initiated by Norway and backed by Co-Chairs failed repeatedly. These negotiations presented opportunities for the LTTE to increasingly strengthen their military capabilities, clearly with the intention of establishing the goal of a separate State of Tamil Eelam through a campaign to demoralize the Sri Lankan State to a point of ceding Tamil Eelam on the basis that the war was unwinnable. Therefore, the option finally was to prosecute the war to a conclusion or settle for a stalemate due to imperatives that made a mutually acceptable political solution an unrealistic proposition. Opting for the former is the responsibility of any sovereign State as stated in Protocol II cited below.


Article 3 of Protocol II states:


1. "Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State".


2. "Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal and external affairs of the High Contracting Party in the territory of which that conflict occurs".


Since the Separatist Armed conflict affected the sovereignty of the Sri Lankan State and its territorial integrity, any responsible Government is required and expected to re-establish law and order and defend its national unity "by all legitimate means". The fact that legitimate means were deployed until the LTTE forced over 300,000 civilians to serve as a human shield by holding them hostage is evident from the cable cited below.


This cable from the US Embassy in Colombo to the US State Department states:


"The Government has gained considerable credit until this point for conducting a disciplined military campaign over the past two years that minimized civilian casualties" (WikiLeaks, 27 January 2009). The dilemma the Government had to face was when the LTTE took over 300,000 plus civilians hostage in complete defiance of prohibitions listed in Protocol II. Of the 8 Acts prohibited by Protocol II Part II the most relevant are: Article 4 ( c) taking of hostages; (d) acts of terrorism. The question before the Government was how best to restore territorial integrity and re-establish law and order under the circumstances presented by the LTTE.


In this regard the opinion of Major General (Retd.) John Holmes formerly of the UK Special Forces is of particular relevance:


Paragraph 67 of his report states:


"There is no military or political advantage to GoSL in killing civilians or shelling hospitals indiscriminately, indeed the reverse is the case. High civilian casualties would have made an international/Indian push for halting the final phase, more likely".


Paragraph 83 of his report states:


"In my military opinion, faced with a determined enemy that were deploying the most ruthless of tactics and which involved endangering the civilian population, SLA had limited options with regard to the battle strategy they could deploy. This could have posed a dilemma for the very best trained and equipped armies in the world. The SLA had either to continue taking casualties and allow the LTTE to continue preying upon its own civilians, or take the battle to the LTTE, albeit with an increase in civilian casualties. The tactical options were stark, but in my military opinion, justifiable and proportionate given the unique situation SLA faced in the last phase".


SOVEREIGNTY and


NON-INTERVENTION


In his statement to the media the UN High Commissioner stated: "It (International Community) wants to help Sri Lanka become an economic power house…The world wants Sri Lanka to be a success story. It has seen the opportunity for lasting success in Sri Lanka, and that is why it has invested so much time and energy into providing that pathway laid down in last October’s Human Rights Councils resolution."


Whether Sri Lanka should be a "power house" or a "success story" is not for the UNHRC to decide. What Sri Lanka decides to be and how it is to be achieved is the inalienable right of the People of Sri Lanka. After all, this is what self-determination is all about; a concept incorporated in most UN instruments. The legacy the International Community left behind when they last came to instruct Sri Lankans as to how they should live is what the nation is desperately trying to sort out. The last time the International Community came to Sri Lanka to broker peace was an utter failure. The fact that they failed came as a surprise to them because like the UNHRC they believed that their plan was faultless. This new blue print by the UNHRC for accountability too is bound to be a fetter to the reconciliation process. The consequences of the litter left behind would eventually have to be sorted out only by Sri Lanka. Therefore, the most the UNHRC can do is to live by its own creed of the twin principles of respect for the sovereignty and non-intervention in domestic affairs of States


The Commentary of Protocol II underscores the twin principles of the inviolability of national sovereignty and non-intervention in internal affairs that essentially are within the jurisdiction of States. Such internationally recognized principles are enshrined in the UN Charter. Since the UN Human Rights Commission and its High Commissioner should be abiding with provisions of the Charter, how is it possible for the High Commissioner to intervene in issues that essentially are related to the healing processes of a bruised nation in its efforts to heal and become whole again.


Paragraph 4499 of the commentary to the Protocol II states:


"This is a savings clause which brings to mind the two complementary principles of international law enshrined in the United Nations Charter: the principle of inviolability of national sovereignty and that of non-intervention in matters which are essentially within the domestic jurisdiction of a State".


Paragraph 7 of Article 2 of the Charter of the United Nations 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;". The reforms proposed by the High Commissioner are in direct violation of what is stated above.


DOMESTIC MECHANISM


The comments by the UN High Commissioner for Human Rights could be broadly categorized as (1) reforms to improve and promote human rights in Sri Lanka and (2) as issues relating to accountability.


1. It must be clearly and unambiguously understood that reforms relating to human rights is a work in progress for Sri Lanka and the rest of the UN’s Member States. As it is with goodness and virtue it is a never ending process. Despite all the reforms suggested by the UNHRC there is no guarantee that the human rights situation in Sri Lanka would end up becoming a "success story", judging from set-backs experienced even by countries such as Norway, and more recently in France where civil liberties and human rights are severely derogated following a spree of killings in the former, and terrorist attacks in the latter.


The imperatives of politics and government formations are often an impediment to improving the human rights situation in most Member States and Sri Lanka is no exception. Therefore, what may appear as a lack of political will often are inevitable imperatives that Governments have to contend with. A clear instance of such imperatives was demonstrated in Sri Lanka’s inability to accommodate foreign judges due to constitutional constraints. As a consequence of these existential realities Member States need to be left to their devises to improve human rights situations in their respective countries, because no amount of pressure from the UN or from the International Community would compel Member States to change their human rights profiles. It is only when the pressure to improve human rights comes from within, that improvements are not only possible but also durable. The lesson for the UNHRC is to respect Sri Lanka’s sovereignty and allow the space and time to work out its own mechanisms and arrangements without intervening in issues that essentially are domestic.


2. With regard to the second category of accountability, the number of "civilians" killed as being baseless is addressed extensively in the Paranagama Commission Report. It is because of the inability to distinguish between civilians and combatants that the task of "Counting or estimating the exact number of civilian casualties during different stages of the armed conflict (becomes) impossible…" (Paragraph 1267, OISL Report by the OHCHR). Furthermore, the UN Country Team, itself, put the death toll at 7,721 from August 2008 to 13 May 2009 (Darusman Report para. 134), a period of 9 months. Since the campaigns in Mannar and Kilinochchi cover a period of 5 months, the numbers killed in the 5 days between 13th to19th May cannot exceed this figure. Whatever be the count, International Experts such as Sir Desmond de Silva and his team and Maj. Gen. Holmes have all concluded that the actions taken by the Security Forces were proportionate in the contest of an armed conflict.


Under the circumstances, what is not possible is to inquire into and prosecute non-specific allegations whether committed by the Security Forces or by the LTTE. However, what is possible are individual violations of Human Rights and International Humanitarian Law committed either by the Security Forces or by the LTTE. Since these are alleged violations, it should be possible to set up a division within the existing framework of the Attorney General’s Department to conduct investigations for appropriate domestic action to follow. It is evident from the foregoing that issues of accountability could be addressed within existing frameworks without having to resort to elaborate arrangements proposed in the UN Resolution.


CONCLUSION


The UN High Commissioner for Human Rights arrived in Sri Lanka with the idea of scolding Sri Lanka in order to compel it to submit to a series of reforms and accountability related issues. The reforms suggested are strictly within the jurisdiction of Sri Lanka (as with any other Member State). Consequently, the UN has no jurisdiction to impose reforms; a fact acknowledged in the UN Charter and Protocol II cited above. The High Commissioner did indeed concede that "Whatever we see from our side, it’s your sovereign right to decide" (Daily Mirror, February 10, 2016).


The twin pillars recognized by the Protocol II and the UN Charter are respect for sovereignty and non-intervention in affairs that are strictly domestic. This requires the UN to give Sri Lanka the time and space to address reforms for its own sake and not to satisfy the UN, because the pace for implementing reforms is dependent on prevailing imperatives of political formations and the stability of Governments; factors over which the UN or Sri Lanka has no control over, no matter its professed commitments.


Hitherto, the conflict in Sri Lanka was seen as one that morphed from a conflict between a State and a non-State actor to that of an Armed Conflict. The fact that it essentially was a sSparatist Armed Conflict to establish Tamil Eelam has not been acknowledged in all of its dimensions. Therefore, issues relating to accountability should be judged from the perspective of International Humanitarian Law applicable to such Separatist conflicts. Consequently, the measures adopted by Sri Lanka were within the "legitimate" rights recognized in Article 3 of Protocol II of 1977 where a responsible sovereign Government is duty bound to restore law and order and re-establish the territorial integrity of Sri Lanka that had been violated under the terms of a Peace Accord brokered by foreign interventionists.


The problem could thus be broken down into specific and unspecific violations of Human Rights and Humanitarian Law. Of the two specific violations committed by the Security Forces or the LTTE could be prosecuted provided there is verifiable evidence, while the unspecific violations that essentially are general in nature are not prosecutable due to lack of evidence. Sri Lanka is eminently capable of meeting challenges associated with specific violations. On the other hand, it has been convincingly demonstrated by international experts that unspecific violations that were associated with the Separatist Armed Conflict were within the right of a sovereign State in order to restore its territorial integrity and establish its writ over the whole of Sri Lanka.


The inability of the UNHRC to perceive the conflicts as a Separatist Armed Conflict has resulted in a distorted perspective - that of Human Rights. Perhaps this was in order to bring it within its assigned remit. However, the appropriate perspective should be that of a Separatist Armed Conflict. Therefore, the UNHRC has an obligation to revisit its perspective for the sake of Truth and Justice.


 
 
 
 
 
 
 
 
 
 
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