Facing the Geneva Threat: Lessons not Learnt

Neville Ladduwahetty, Island 29 January 2020, in with this title “GENEVA: Lessons NOT Learnt”

 

Lady Justice reading a book

According to a report in The Island of January 23, 2020, Minister Keheliya Rambukwella had stated “that the new government’s stand on the Geneva accountability resolution would be based on the position taken by former Foreign Minister Tilak Marapana, P.C. on behalf of the previous government…”.

“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.

 

How the present government proposes to use the statement made by former Minister Marapana, is not known at this time.  However, what needs to be recognized is that the statement of former Minister Marapana is limited to a single issue of the “constitutional and legal challenges” associated with the participation of “non-citizen judges” in a judicial process to address allegations of violations of international human rights and humanitarian laws.

ESTABLISHING the APPROPRIATE CONTEXT

What the former Minister did NOT state was that since the conflict in Sri Lanka was an armed conflict, the context in which such a judicial process, if any, should be conducted should be under provisions contained in Common Article 3 of the Geneva Conventions relating to non-international armed conflicts.

Common Article 3 was incorporated in all Geneva Conventions in 1949.  Following the conclusion of World War II, the inadequacy of the provisions of Common Article 3 to address complex issues relating to internal conflicts that took place in several countries, prompted the international community to develop a comprehensive Protocol to address issues relation to non-international Armed Conflict.  This process took twelve years and the final outcome was 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) of 8 June, 1977”.   Since this Protocol has been accepted as an integral part of Customary Law and its foundation is International Humanitarian Law (IHL), its provisions should be the parameters to judge the conduct of parties during a non-international armed conflict as had occurred in Sri Lanka.

LESSONS NOT LEARNT

No Government representing Sri Lanka in Geneva has established the fact that the armed conflict in Sri Lanka had met the recognized threshold to categorize it as a non-international armed conflict, and as a consequence is entitled to measure its conduct on the basis of provisions contained in Additional Protocol II of 1977 referred to above.  Notwithstanding this serious shortcoming on the part of successive governments, the Panel of Experts retained by the UN Secretary General in its report and, the Office of the High Commissioner for Human Rights (OHCHR) in its report, have categorized the conflict as an ‘armed conflict’ and that the applicable law should thus be International Humanitarian Law.

The UN appointed Panel of Experts in its report stated: “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 of both government and the LTTE”.

Paragraph 182 of The OHCHR report states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka and Paragraph 183 of the OHCHR report states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.

Defining what constitutes an armed conflict the Appeals Court of the International Tribunal on former Yugoslavia (1995) in the case of Prosecutor v. Dusco Tadic 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 conflict and extends beyond the cessation of hostilities…. (and) in the case of internal conflicts, a peaceful settlement is achieved”.

Consequently, the standards, benchmarks and parameters that should guide addressing issues relating to alleged violations during the non-international armed conflict in Sri Lanka should be Additional Protocol II of 1977, and Rules of Customary International Law applicable to non-international armed conflict embodied in ICRC document Volume 87, Number 857 of March 2005.

No government representing Sri Lanka in Geneva has presented evidence challenging the allegations such as 40,000 civilians killed, use of excessive force and the non-delivery of humanitarian aid to those held hostage by the LTTE in the conflict zone, despite the availability of evidence from numerous sources.   For instance, no government representing Sri Lanka in Geneva has used the views expressed by experts such as late Sir Desmond Silva et al, and in particular Maj. Gen. Holmes in the Paranagama Commission Second Mandate report.  No government has used the painstaking material collected against insurmountable odds by the indomitable Lord Naseby, and material from numerous sources and statements by key persons who were intimately associated with and had first-hand information on the delivery of humanitarian relief during and after the armed conflict in order to contradict these allegations to the advantage of Sri Lanka.  The big question is:  WHY?  

Why did the governments representing Sri Lanka in Geneva not cite the principles of Distinction and Proportionality that are a part of International Humanitarian Law to challenge the claim of the number of civilians killed, in view of the fact that LTTE combatants had shed their uniforms making it impossible to distinguish civilians from combatants, thereby making inoperable the principle of proportionality in the use of force and military advantage?   

Why did no government representing Sri Lanka in Geneva declare that under Customary Law, parties to the conflict are not obligated to supply humanitarian relief to the other parties to the conflict including those under their charge to whom they are responsible as per rule Rule 55 of the ICRC?  This rule states: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need…”.   Therefore, the only obligation for the Government of Sri Lanka was to provide “unimpeded passage of humanitarian relief”, but not any relief itself.  Despite this, the fact that the Government supplied humanitarian relief of every kind is evident from the comments of all those who were responsible for the delivery of humanitarian relief to the civilians held hostage by the LTTE. WHY was this evidence not presented by the governments representing Sri Lanka in Geneva?

ACCOUNTABILITY as per ADDITIONAL PROTOCOL II

The UNHRC Resolution envisages addressing accountability by means of a judicial process as per paragraph 6 of the UNHRC Resolution 30/1 in order to prosecute and punish those responsible for alleged violations of International Human Rights and Humanitarian Law. Since Article 6 of the Additional Protocol embodies provisions and procedures to prosecute and punish anyone culpable of criminal offences relating to the armed conflict, a specially constituted judicial procedure is NOT required since national judicial arrangements to conduct such hearings already exist. Furthermore, if justiciable evidence relating to such crimes already exists, nothing prevents anyone from initiating proceedings at any time on the basis that “Anyone charged with an offence is presumed innocent until proved guilty according to law”.

“Article 6. PENAL PROSECUTIONS”:

  1. “This Article applies to the prosecution and punishment of criminal offences related to the armed conflict”.
  2. “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) No one shall be convicted of an offence except on the basis of individual penal responsibility; (c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was [committed] ‘ if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) Anyone charged with an offence is presumed innocent until proved guilty according to law; (e) Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt”.
  3. “A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised”.
  4. “The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children”.
  5. “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

It is therefore clearly evident from the foregoing that a specially constituted judicial mechanism is not required since needed arrangements within existing national judicial mechanisms already exist to prosecute and punish anyone culpable of having committed criminal offences relating to the armed conflict. Instead, what is needed is for the government to address alleged violations of International Laws, by presenting the documented evidence available within the context of a non-international armed conflict in which International Humanitarian Law applies.

MISSING PERSONS and REPARATIONS

RULE 117: Missing Persons: “Each party to the conflict must take all reasonable measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate”.

RULE 150: Reparations: While a State party to an armed conflict is “required to make full reparations for loss or injury caused, an armed opposition group that is recognized as a party to the armed conflict is also liable for reparations”. For instance, “the UN Security Council called upon “the leaders of the factions” in Afghanistan to ensure the return of looted property.   In a resolution on Afghanistan adopted in 1998, the UN Commission on Human Rights urged “all the Afghan parties” to provide effective remedies to the victims of violations of human rights and humanitarian law. In 1998, in his (the Secretary General) report on the causes of conflict and the promotion of durable peace and sustainable development international legal machinery be developed to facilitate efforts to find, attach and seize the assets of transgressing parties and their leaders” (ICRC, Customary IHL).   Therefore, while the UNHRC Resolution welcomes the proposal of the government to establish “an office for reparation”, Customary Law states that all parties to an armed conflict are responsible for reparations.

Therefore, it could be legitimately concluded from the foregoing that the commitment by the government to establish offices for missing persons and for reparations should be limited only to those that the government is responsible for according to provisions of Customary International Law.

APPLICATION of IHL in the CONTEXT of GEOPOLITICS

Judging from the material presented above there is no doubt whatsoever that Sri Lanka is in a position to effectively and professionally address issues relating to the armed conflict and justify withdrawal from UNHRC Resolution 30/1 by invoking provisions of International Humanitarian Law. However, the pertinent question is whether issues relating to Geneva could be treated in isolation of the prevailing geopolitics as a consequence of major power rivalries both in and around Sri Lanka as a result of its strategic location, or whether there is a nexus between the two.  The response from Geneva on the stand taken by Sri Lanka will confirm whether there is in fact a nexus or not.  If there is a nexus, it would be prudent for Sri Lanka to be conscious of the interests of the US and the West, and also on how focused China is about its Belt and Road Initiative (BRI) in relation to Sri Lanka.

As for the US, its interests relate to ACSA, SOFA and the MCC Compact, while for China, its priority is greater investment in Sri Lanka in order to further consolidate its Belt and Road Initiative. China already has its footprint in Hambantota. To the US, the MCC Compact is its equivalent. Of the two, Hambantota has minimal impact on Sri Lanka’s territorial integrity. On the other hand, the MCC Compact could with time divide the country by creating a developed corridor with less developed regions on either side of it, through the judicious selection of seven districts for development that enable Colombo and Trincomalee to be linked logistically.  This is what precipitated the negative response from the public.  If instead of a central growth corridor the operations of Colombo Port are strictly limited to commercial activities, and Trincomalee is organized to handle non-commercial activities, the need to link Colombo and Trincomalee does not arise. Thus, separating the functions of the two Ports would not disturb the territorial integrity of Sri Lanka.

The non-commercial activities could be what the Principle Deputy Assistant Secretary of State for South and Central Asian Affairs Alice Wells is reported to have stated: “the United States and Sri Lanka had compelling shared interests that include countering violent extremism, strengthening maritime security, preventing narcotics smuggling, promoting economic growth as part of an free and open Indo-Pacific (The Island, January 27, 2020).   Trincomalee could be an ideal location for the US and Sri Lanka to carry out the joint activities cited above, thus furthering “shared interests”.

CONCLUSION

The intention of the government to refer to the constitutional and legal challenges stated by former Minister Tilak Marapana during the 40th Session of the Human Rights Council, cited above, is totally inadequate because it addresses a single issue relating to the participation of non-citizen Judges in a judicial process. What the government should do instead, is to disclaim the alleged violations and the recommendations in UNHRC Resolution 30/1 using the material available to it from sources such as Lord Naseby, from experts in the Paranagama Commission report and other relevant sources, on the basis of International Humanitarian Law applicable to non-international armed conflict; a fact recognized by the UN Secretary General’s Panel of Experts and the OHCHR report.

Presenting this body of evidence by itself without invoking the provisions of International Humanitarian Law as presented in Additional Protocol II of 1977 would not have the needed international authenticity to make it acceptable to member States in the Human Rights Council, however sympathetic to Sri Lanka they would be.  However, even if the government acts on the above recommendations. a fact that should not be overlooked is that the response from Geneva would depend on the prevailing interests and priorities of the major powers that are pursuing their geopolitical agendas in and around Sri Lanka and in the Indo-Pacific.  Therefore, it is imperative that while the government justifies withdrawal from the provisions in UNHRC Resolution 30/1, it also factors in the geopolitical interests and priorities on the lines recommended above, if Sri Lanka is to bring closure to the issues raised in Geneva, and strengthen the island’s relations with all countries, within the framework of the declared policy of neutrality.

Neville Ladduwahetty                                         January 28, 2020.

 

 

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