Accountability in non-international armed conflicts

The Case for Sri Lanka at Geneva in March 2014



By Neville Ladduwahetty


It is common knowledge that the USA is deploying its resources to canvass yet another resolution against Sri Lanka. The focus of the forthcoming resolution is expected to be on accountability relating to events that occurred during the conflict from January to May of 2009. The two official bodies that have addressed the issue of accountability thus far have been the Panel of Experts appointed by the UN Secretary General and the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the President of Sri Lanka. Given below is an evaluation of the implications of the perspectives adopted by each on accountability and its impact on Sri Lanka along with a recommended position Sri Lanka should take in Geneva.


The Panel of Experts appointed by the UN Secretary General (UNSG) to report on accountability in Sri Lanka states: "In sum the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore does not and cannot justify the joint commitment of the President of Sri Lanka and the Secretary General to an accountability process". How the Panel of Experts could have come to such a premature conclusion considering the fact that their report was dated March 2011, EIGHT MONTHS AHEAD of the LLRC report, dated November 2011, brings into question the authenticity of their report.


A further fact to question the credibility of the Panel of Expert’s report is the admission in paragraph 137 which states:"In the limited surveys that have been carried out in the aftermath of the conflict the percentage of people reporting dead relatives is high. A number of credible sources have estimated that there could have been as many as 40,000 civilians killed". This number of "40,000 civilians killed" has caught the attention of many and has become the basis to trigger the call for an inquiry with a focus on accountability. Since the number of "dead relatives" would have COLLECTIVELY consisted of LTTE cadres, others taking direct participation in hostilities both voluntarily and under compulsion, thereby qualifying them to be combatants under ICRC guidelines, as well as legitimate civilians, how 40,000 "dead relatives" could all have been transformed into legitimate civilians, seriously questions the credibility of this conclusion by the Panel of Experts..


It is in this background that the call is made for a credible national inquiry failing which is to be an international inquiry to address issues of accountability. Following the undertaking of the UNSG to appoint a Panel of Experts to establish "standards, benchmarks and parameters" that should guide the accountability process the key parameter adopted by the Panel of Experts was that since the conflict in Sri Lanka met the threshold of a Non-International Armed Conflict the inquiry should be within the framework of International Humanitarian Law.


CONTRASTING CATEGORIZATION of the CONFLICT


Paragraph 181 of the Panel of Expert’s report states: "International humanitarian law applies because the hostilities clearly met the threshold for an internal armed conflict, i.e., one involving protracted armed violence between the Government and organized armed groups. According to the International Criminal Tribunal for the former Yugoslavia (ICTY), an armed conflict exists ‘whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within the State’. There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct in the conflict of both the Government and the LTTE".


While the Panel of Experts took the position that the Government and the LTTE should be equally held responsible for conformance to International Humanitarian Law the Government’s appointed LLRC adopted a different approach. The premise of the LLRC was that the Government of Sri Lanka waged an Armed Conflict against a terrorist group that does not accept International Humanitarian Law and are not bound by its norms. The consequence of this premise is to require the Government of Sri Lanka and the Security Forces to act by higher standards than the LTTE. This contradicts the principle of the ICRC that parties to a Non-International Armed Conflict are EQUALLY responsible. The position taken by the LLRC makes Sri Lanka vulnerable to charges of accountability, and not the LTTE.


Although there is general acceptance that the conflict was a Non-International Armed Conflict, legitimate entitlements that flow from such a categorization were not and are not exploited to Sri Lanka’s advantage. For instance, the charge of firing into the No Fire Zone (NFZ) could justifiably be rejected because such protected zones acquire legitimacy ONLY if there is written agreement between the parties to the conflict. Since such agreements did not exist, the concept of NFZs had ceased to exist. Another charge is the denial of humanitarian aid. This charge could also be rejected since parties to a Non-International Armed Conflict are ONLY required to provide access to humanitarian aid and NOT for providing such aid. The premise of the LLRC that the Government waged an Armed Conflict against a terrorist group denies the opportunity for these charges to be rejected. What needs to be appreciated is that terrorism is a tactic used by dissident groups (such as the LTTE) who challenge the writ of legitimate Governments. And if the challenge meets the threshold of a Non-International Armed Conflict, they too need to abide by rules of International Humanitarian Law.


RELAVANCE of INQUIRIES FOLLOWING


INTERNAL CONFLICTS


Conflicts between States invariably end in winners and losers or in a truce. Reconciliation is not a priority. This is not the case with internal conflicts whatever their nature. The final and primary objective is reconciliation if the conflict is not to recur. Furthermore, the root cause of internal conflicts, as in the case of Sri Lanka, is invariably political. Under the circumstances, inquiries would bring into focus the actions adopted by the heroes of the parties engaged in the conflict. To the overwhelming majority in Sri Lanka their hero was the Government and the security forces that restored the territorial integrity of Sri Lanka and made it safe for all communities to get about without the uncertainty of having to face death by bringing closure to terrorism and ushering a level of stability that permits economic development. To the Tamil community, the heroes were the LTTE who despite the crimes committed by them on the Tamil community itself, sacrificed their lives in their name.


The Tamil community would not want their heroes to be humiliated by reports such as that of the UN Resident Manager and the UN Country Team when they briefed the diplomatic corps in Colombo on March 9, 2009. During their brief they stated that the LTTE "….forced recruitment of men and women…(and) children as young as 12, at least one mass execution of civilians, mass corporal punishment,…the blocking of corridors for civilians trying to leave combat areas…the forced movement of civilians, the placing of weapons in areas of civilian concentration, and the diversion and possible withholding of humanitarian aid to civilians". ( Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka, p.11).


In this background holding an inquiry would result in exposing the actions of their respective heroes. Such an exercise would not only polarize the communities but would also definitely hamper attempts at reconciliation. The notion that truth sets us free may have relevance in certain circumstances, but blindly applying it to issues relating to internal conflicts should not be attempted. Consider for instance the composition of a Panel of Inquiry. It is highly unlikely that members of the Tamil community would step forward to participate in an exercise that would result in exposing the conduct of the LTTE - their heroes. And if the Panel of Inquiry is made up of very eminent persons from other communities who are recognized for their impartiality, it is unlikely that they would be acceptable to the Tamil community. On the other hand, if the panel of inquiry is made up if internationally recognized persons the charge would be that the Government has sacrificed the sovereignty of the people and caved under international pressure. All of which means that it is not possible to get to first base; that of constituting an acceptable Panel of Inquiry.


It is reported that the Government is exploring a national inquiry modeled on the Truth and Reconciliation Commission (TRC) of South Africa. In this regard it would be advisable for advocates of such proposals to pay heed to the comments of none other than the Chairman of the Commission, Rev. Desmond Tutu. Commenting on the limitations of the process, which incidentally is held up as the flagship of all post-conflict inquiries, the Chairman stated:


"The TRC was confronted by a number of challenges, as it was not accepted by all parties to the conflict. The top echelons of the military did not cooperate with the commission. It was mainly the foot soldiers in the security forces and those who were already imprisoned or were facing charges who applied for amnesty. Senior politicians in the former government and senior leaders in the security forces did not apply. In the case of the liberation movements, the members argued that as they had conducted a "just war", they were not required to apply for amnesty because their actions did not constitute gross violations of human rights"(Encyclopedia Britannica www.eb.com).


CONCLUSION


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. This applies not only to Sri Lanka but also to internal conflicts in general judging from the remarks of Rev. Desmond Tutu cited above.


Of the two official bodies that have addressed accountability relating to Sri Lanka’s conflict namely the Panel of Experts appointed by the UNSGl and the LLRC appointed by the President of Sri Lanka, the only noteworthy contribution made by the Panel of Experts is the categorization of the conflict as a Non-International Armed Conflict. On the other hand, the position taken by the LLRC was that the conflict was between the Government and a terrorist group. The views presented above demonstrate that presenting the conflict as a Non-International Armed Conflict favours Sri Lanka more than that taken by the LLRC.


The impact of the position adopted by the LLRC was to focus attention on the conduct of the Government and NOT on the LTTE. If LTTE actions were also to be judged on the same scale as that of the Government it is unlikely that the Tamil diaspora, their Western supporters and Tamil Nadu would be so strident in their call for an inquiry in any form since it would expose the crimes committed by their heroes - the LTTE.


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.


Neville Ladduwahetty


February 8, 2014.


 
 
 
 
 
 
 
 
 
 
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