LLRC recommendations and UNHRC resolutionMay 21, 2012, 9:34 pm
By Neville Ladduwahetty
When the Lessons Learnt and Reconciliation Commission (LLRC) was appointed not only was its membership discredited as being partial to the Government, but also its report was expected to be a whitewash. To everyone’s surprise however, the report has turned out to be acceptable to most in the International Community to the point that the implementation of its recommendations was made the object of a resolution at the last UNHRC sessions in Geneva. Coincident with the LLRC report being made public, the call for an International inquiry into allegations of war crimes that was made prior to the publication of the report, has lost its appeal.
Perhaps the call for an international inquiry would have remained had the recommendations of the LLRC not met the expectations of the International Community. Whether such imperatives influenced the LLRC or not, the outcome is a set of broader than expected recommendations that were intended for internal consumption, now being internationalized with the passage of the UNHRC resolution without it having been formally tabled by Sri Lanka. In short, Sri Lanka has perhaps been out-smarted and trapped into implementing its own recommendations with consequences if they are not implemented to the satisfaction of the International Community represented by the UNHRC.
The LLRC recommendations are based on a clear distinction between the conflict phase and the post-conflict phase. The Commission has addressed issues relating to the conflict and in particular to the final phase of the conflict, in terms of International Humanitarian Law, and post-conflict issues in terms International Human Rights Law. Such definitive distinctions do not exist in real life situations. The major field of application following a conflict as happened in Sri Lanka where the people can best be categorized as Internally Displaced, is Humanitarian Relief, often stretching over several years whereas Human Rights issues may coexist, albeit to a lesser degree in parallel to start with, but gain greater relevance as normalcy is reached.
This position is clear in the ruling given in the case of the Prosecutor v. Dusko Tadic by the Appeals Court of the International Tribunal for the Protection of Persons responsible for serious violations of International Humanitarian Law committed in the former Yugoslavia since 1991 (hereinafter "International Tribunal 1995"), where they stated: "…we find that an armed conflict exists whenever there is 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 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 of the warring State or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there".
The definition as to what constitutes an "armed conflict" cited above is confirmed by the definition in Additional Protocol II of 1977 applicable to Non-International Armed Conflicts, according to which this Protocol "Shall apply to all armed conflicts…that take place in the territory of a High Contracting Party between its armed forces and dissident armed groups or other organized armed groups which, under responsible command, exercises such control over a part of its territory as to enable them to carry out sustained and concerted military operations…". Furthermore, the Darusman Report also categorizes the conflict in Sri Lanka as an "armed conflict"
Based on the ruling given by the International Tribunal 1995 cited above, International Humanitarian Law "applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached. Until that moment international humanitarian law continues to apply…whether or not actual combat takes place there". Therefore, International Humanitarian Law provisions should apply beyond May 19, 2009, the day on which the hostilities ended. It further confirms that the applicability of Humanitarian Law should extend beyond until conflict and post-conflict related issues such as resettlement, reconstruction and rehabilitation of those who were affected by the conflict were sorted out. Therefore, a major portion of the field of application of Government activity over the past three years falls within conflict related issues and therefore Humanitarian Law applies. However, the LLRC has categorized activities such as resettlement, reconstruction of infrastructure, housing, treatment of detainees, rehabilitation, restoring lively hood, Land issues; Restitution and/or Compensatory Relief; issues relating to the Muslim IDPS etc. etc. as Human Rights. This approach was reflected in Geneva when the Government presented its record of post-conflict achievements under the rubric of Human Rights.
In terms of the aforesaid, the LLRC recommendations should have been categorized into 3 groupings. The 1st grouping should be recommendations arising from conflict and post conflict issues that are Humanitarian in nature and applicable mainly to those in the Northern and Eastern Provinces. The 2nd grouping should relate to Human Rights and applicable to all Sri Lankans; and the 3rd grouping should relate to issues of governance (as in LLRC report) which are also applicable to all Sri Lankans. While the Government needs to address issues relating to all 3 categories in order to foster Reconciliation, as far as the UNHRC is concerned it is only the recommendation under the 2nd category namely Human Rights, that is within its jurisdiction. By failing to recognize these distinctions the Government allowed the UNHRC to intervene in areas outside its rightful mandate of Human Rights, thereby creating an unhealthy precedent of giving license to the UNHRC to intervene in the internal affairs of Sri Lanka. By calling for the implementation of the constructive recommendations in the LLRC report that covers all 3 groupings, the UNHRC has encroached into Humanitarian issues and internal issues of governance both of which are beyond its warrant.
The Government should bring to the attention of UNHRC that its warrant does not extend into issues relating to Humanitarian Law whose guardian is the ICRC, and to issues of governance. The Government should even go to the extent of initiating a resolution with the support of member states, to limit the jurisdiction of the UNHRC only to Human Rights on grounds that other issues are off limits and amount to intervention in their internal affairs; a right recognized by Article 1 (7) of the Charter of the United Nations which state: "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…". Such a measure is likely to receive wide support of member States because of inbuilt sensitivities for International Agencies to intervene in matters domestic.
Perhaps it was the lack of recognition and appreciation of the distinctions between Humanitarian Laws and Human Rights Laws that caused the Government to present to the UNHRC, its achievements with regard to post-conflict related issues that fall within the domain of Humanitarian Relief as fulfillment of Human Rights obligations. Similar lack of appreciation and understanding is prompting commentators to justify the UNHRC resolution that calls for the blanket implementation of the LLRC recommendations without realizing that issues relating to conflict and post-conflict Humanitarian Relief and governance are outside the jurisdiction of the UNHRC. This is the flaw in the resolution. Therefore while there is no dispute that the UNHRC is the legitimate forum to raise Human Rights issues, it certainly is not the forum to raise issues relating to governance and/or conflict and post-conflict related issues that come within the domain of Humanitarian Law. It is permitting the UNHRC to probe into such areas that makes the resolution objectionable and the measures adopted being clearly an intervention. This in no way derogates the responsibility of the Government to implement those recommendations of the LLRC with due recognition to existing imperatives.
The LLRC report makes a clear and distinct demarcation between issues relating to the conflict as coming within the frame of Humanitarian Law and post-conflicts issues coming within the frame of Human Rights Law. However, such definitive demarcations were overruled by the International Tribunal 1995 of former Yugoslavia. According to the Tribunal’s ruling the application of Humanitarian Law does not cease with the cessation of hostilities (May 19, 2009 in Sri Lanka), but continue to prevail beyond "whether or not actual combat takes place there". Therefore, Humanitarian Relief for the Internally Displaced as a result of the conflict must take precedence over Human Rights, with overlap to a lesser degree to start with and assuming greater importance as normalcy is restored. This process took from 1994 to 1999 in Bosnia Herzegovina and from 1999 to 2004 in Kosovo, respectively (IMF Working Paper, 2002, WP/02/198).
The vast majority in the Northern and Eastern Provinces were internally displaced. Their priorities must necessarily be different to the rest of the people of Sri Lanka. What matters to them has to be issues of resettlement, reconstruction, rehabilitation, detainees, security issues, Land issues arising from right of return, Compensatory Relief etc,; all of which are within the domain of Humanitarian Relief. While such issues are specific to those on the Northern and Eastern provinces, Human Rights and issues of governance, on the other hand, apply to all Sri Lankans. Perhaps influenced by the LLRC categorization the Government presented what is accepted internationally as commendable Humanitarian Relief achievements to the UNHRC, not realizing that it was the wrong forum, since the UNHRC is specifically mandated to review ONLY Human Rights situations in countries.
The LLRC recommendations that were meant for domestic implementation and therefore not formally tabled in Geneva were internationalized by the adoption of the UNHRC resolution. This imposes a constraint on Sri Lanka to implement LLRC recommendations that encompass issues relating to the conflict and post-conflict Humanitarian issues, Human Rights and governance, as well as the license for the UNHRC to monitor and report on issues that are outside its warrant, except for Human Rights. Sri Lanka failed to bring to the attention of those in Geneva that the warrant of the UNHRC is limited to Human Rights, and that Humanitarian issues and governance are outside the jurisdiction of the UNHRC. One possible way out of this trap is to adopt a principled approach and initiate a resolution drawing the attention of member states of the need for the UNHRC to confine its functions within the field of Human Rights without intervening into areas outside its mandate. Sri Lanka is likely to receive wide support for such a move, because it is in the interest of most countries that the UNHRC stays focused on Human Rights without intervening in fields of domestic jurisdiction of member States as resolved by the UN Charter.
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