“… 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”.

by Neville Ladduwahetty

The most recent challenge that Sri Lanka has had to face was associated with UNHRC Resolution A/HRC/46/L.Rev.1. This Resolution was primarily based on the Report of the UN appointed Commissioner for Human Rights. Despite the objections raised the Sri Lankan government on grounds that the Report of the Commissioner violates the mandate granted by General Assembly Resolution 48/141 and that the Resolution itself violates the UN Charter and lacks “impartiality, objectivity and non-selectivity”, the Resolution was adopted by the Human Rights Council on March 23, 2021.

The compulsion to go to such extremes and adopt a Resolution violating due process established by the UN, is driven by internal politics within countries that initiated the Resolution and by geopolitical interests of major powers.

Internal political compulsions are driven by the priorities of the Tamil minority concentrations resident in defined electorates in countries such as U.K., Canada, Germany and other European countries. When prospective Members of Parliament in these countries, regardless of which political party they represent, campaign for the votes of the Tamil minorities, they when elected, become the torchbearers for the priorities of the Tamil minorities, because it is their vote that decided whether they are elected or not. Consequently, since accountability for issues arising from the non-international armed conflict in Sri Lanka is the single-minded focus of the Tamil minorities, accountability has become a government policy for elected governments in these countries.

On the other hand, geopolitical compulsions are driven by a coalition of democracies forging security alliances such as the Quad, headed by the U.S. to contain China’s global expansion in the South China Sea founded on the Chinese claim of nine-dash line and its inroads into the Indian Ocean Rim countries in pursuit of their Belt and Road Initiative. These developments have energized the U.S. to adopt the policy of “Pivot to Asia” through the stated policy of forging a new Indo-Pacific Maritime Order.; a policy that is being relentlessly pursued by the U.S. in the form of forging alliances. the latest being the Maldives and the consequent isolation of Sri Lanka in this part of the Indian Ocean.

ADDRESSING INTERNAL COMPULSIONS

Internal compulsions are driven by the call to address accountability arising from issues relating to the non-international armed conflict within the time frame of signing the Ceasefire Agreement on February 22, 2002 and May 19, 2009 when the conflict ended. Having established the time frame, the next step is to establish the context in which to address accountability. In this regard, a context that would be acceptability to all concerned should be those established by the Panel of Experts appointed by the UN Secretary General, the Office of the High Commissioner for Human Rights and by the Appeal Court of the International Tribunal of former Yugoslavia.

The UN appointed Panel of Experts in their 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”.

The Report of Office of the High Commissioner for Human Rights on Sri Lanka (OISL) states: “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”.

Paragraph 183 goes on to state: “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”.

FURTHERMORE,

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”.

Thus, it could justifiably be concluded that the context in which accountability issues should be addressed is International Humanitarian Law since the conflict in Sri Lanka was a Non-International Armed Conflict and the applicable law is International Humanitarian Law that acknowledges the derogation of Human Rights Law except for a defined few defined as the “hard core” of Human Rights during an officially declared emergency. Since these laws are codified in Additional Protocol II of 1977, issues relating to accountability should be addressed within the context of Additional Protocol II of 1077 that is acknowledged by the community of nations as a part of customary law.

Therefore, the task at hand is to evaluate any and all evidence of any violations of International Humanitarian Law as stated in the OISL Report, in the context of provisions in Additional Protocol II of 1977, subject to derogation of International Human Rights Law that is recognized by the International Covenant on Civil and Political Rights (ICCPR) and by Article 15 (7) and (8) of the Constitution during a declared emergency. In this regard, Paragraph 175 of the OISL Report states: “OISL notes that Sri Lanka has submitted a Declaration of a State of emergency dated 30 My 2000, derogating from articles 9 (2), 9 (3), 12 (1), 12 (2), 14 (3), 17 (1), 19 (2), 21 and 22 of the ICCPR. Measures taken pursuant to derogation are lawful to the extent they comply with the conditions set out in international human rights law…”.

In explaining the relationship between international human rights law and international humanitarian law during armed conflict, the International Court of Justice has stated: “…. the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law” (Applicable International Human Rights and International Humanitarian Law Framework – UN).

Considering the material presented above, it is recommended that a document should be prepared on the basis of principles of Distinction, Proportionality and Military Necessity on which is founded International Humanitarian Law an embodied in Additional Protocol II of 1977 that addresses any alleged violations stated in the OISL Report by a group nominated by the Ministry of Foreign Relations. Such a document should include material proposed by the international experts appointed by the Paranagama Commission together with material from Lord Naseby, as well as any other related material for distribution to all countries, in order to convey to them a perspective that thus far has not being presented at repeated sessions of the UN Human Rights Council and other International forums.

The mandate of the three Member Commission of Inquiry appointed by the President as part of the Domestic Mechanism to address accountability states: (a) “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such offences”. Since the mandate does not specify the criteria and the time frame that should be used to distinguish human rights violations from humanitarian law violations, it would be up to Commission to decide how to distinguish between the two types of violations bearing in mind that the two types of law are applicable over different time frames.

UNIVERSAL JURISDICTION

The UNHRC 46/1 Resolution calls for the Office of the High Commissioner “to collect, consolidate, analyse and preserve information and evidence…to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction” (Paragraph 6). In short the evidence is gathered at a cost of US $ 2.8 Million to facilitate Member States to exercise universal jurisdiction. Thus far, universal jurisdiction has been exercised in regard to violations that come within the framework of a “Grave Breaches” regime that have occurred during certain internal conflicts that were governed by International Human Rights Law. However, in the case of Sri Lanka the conflict is categorized as a non-international armed conflict that is governed by International Humanitarian Law. Therefore, while the international community has accepted universal jurisdiction in the case of international armed conflicts along with Protocol I, the jury is still out as to whether it applies to non-international conflicts as in Sri Lanka as expressed by the ICRC comment cited below made to the General Assembly.

A document that addresses accountability from a Sri Lankan perspective would stand in good stead in the event a country or countries attempt to exercise universal jurisdiction relating to issues arising from the armed conflict. However, since the conflict in Sri Lanka was a non-international armed conflict the application of universal jurisdiction is fraught with fundamental issues as is evidenced by the statement of the ICRC to the UN General Assembly at its 71st session Sixth Committee, when it stated: “The updated commentaries also address other fundamental issues, such as the time frame for fulfilling the obligation to investigate alleged grave breaches and either prosecute or extradite those responsible; the challenges encountered by States when implementing universal jurisdiction; the state of international law today with regard to the potential immunities from jurisdiction and prosecution for alleged perpetrators of serious violations of IHL; and the possible applicability of the grave breaches regime to serious violations of IHL in non-international armed conflict” (emphasis added).

ADDRESSING GEOPOLITICAL COMPULSIONS

The strategic position of Sri Lanka in the Indian Ocean has been increasingly coming into focus with the conclusion of the armed conflict in Sri Lanka. This, together with China’s policy to pursue its expansion founded on its Belt and Road Initiative has increased the focus on Sri Lanka. The need for the U.S. to contain China’s expansion in the South China Sea and in the Indian Ocean Rim countries has prompted the U.S. and its allies to build alliances such as the Quad that include India, Japan and Australia. India’s inclusion in the Quad was a recent development and an even more recent development was the Maldives entering into security related agreements with the U.S. and India.

This has isolated Sri Lanka. With the Quad attempting to extend its influence to countries East of the Malacca Straits, Sri Lanka’s isolation would be even greater. However, Sri Lanka would not be facing such isolation had it succumbed to U.S. pressures and signed the MCC Compact and SOFA after having signed ACSA. Although Sri Lanka managed to emerge ostensibly unscathed by not caving into U.S. pressure, its repercussions were experienced in Geneva. However, for all intents and purposes, the perceived isolation of Sri Lanka in the current context is bound to be taken advantage of by China to build even stronger bonds than those existing today. This is inevitable since China’s foot print is already well established in the Colombo Port City, the Colombo International Container Terminal and the harbour at Hambantota for the next 35 to 99 years.

It is most likely that the U.S., India and the rest of the Quad are going to extract a heavy price for the presence of China to the extent it has. This compels Sri Lanka to make hard choices similar to the ones that countries East of the Malacca Straits would have to face in the coming years. As for Sri Lanka, it cannot afford to offer planned infrastructure projects such as the West Container Terminal to India/Japan in the hope of appeasing one or more members to the Quad to balance the influence of China. This would amount dividing national projects between the Quad and China.

The way out for Sri Lanka to prepare the tender documents and call for open international bids in a transparent manner, and award the contract to the successful bidder regardless of geopolitical considerations. For instance, the solar power project in the three islands off the Jaffna peninsula should be awarded to China because China was chosen by the ADB as the successful bidder after addressing the security concerns of India, but Sri Lanka certainly need not abandon the project because of India’s concerns.

Since Sri Lanka’s stated Foreign Policy is Neutrality; and Non-Alignment, entertaining unsolicited bids for projects would amount to violating that policy. How Sri Lanka could live up to the promise of its stated policy and engage with all countries is to be open and transparent in the manner it implements its planned developments.

CONCLUSION

The challenges facing Sri Lanka, apart from the effects of COVID-19 pandemic and its impact on the economy and the livelihood of the people are primarily from two sources. One is from internal pressures from the Tamil concentrations in defined electorates in countries such as U.K., Canada, Germany and other European countries that determine who gets elected to their respective Parliaments. Consequently, to these politicians the cause of their Tamil concentrations relating to accountability has become a policy for these governments. The second challenge is from geopolitical rivalries between major powers and others aspiring to be major powers attempting to control the Indo-Pacific Oceans. It was the role of the Oceans in maintaining the super power status of the U.S. that made US Navy Admiral Mahan to recommend to President Roosevelt the importance of oceans, especially the Pacific, to the U.S. The Indian Maritime Doctrine-2004 is based on this U. S. concept (Khan, May 23, 2010). The rivalry arose when China’s claims in the South China Seas and the concept of Belt and Road Initiative announced in 2013 were superimposed on the U.S. formulations.

The impact of these developments was the emergence of the Quad security alliance headed by the U.S. involving Japan and Australia and recently India, and even more recently the Maldives. The Quad started out as a humanitarian exercise to address the disaster following the 2004 tsunami. The transformation into a security alliance was to be expected in the wake of China’s claims. However, the impact of all these developments is to isolate Sri Lanka. What is recommended is a strategy for Sri Lanka to meet the challenges arising from the geopolitical rivalries in the Indo-Pacific.

The two recommendations presented above to overcome these challenges are: 1. To prepare a comprehensive document as suggested above that addresses the Internationally recognized Humanitarian Law violations as alleged by the Office of the Commissioner for Human Rights in the OISL Report, in the context of Additional protocol II of 1977, and circulate and canvass through Sri Lanka’s Missions, all the Member States of the UN, in order to convey Sri Lanka’s perspective that hitherto has not been presented to the Human Rights Council or to any other international forum. 2. In keeping with Sri Lanka’s declared Foreign Policy of Neutrality and Non-Alignment, follow due process in the award of contracts relating to infrastructure projects by not entertaining unsolicited proposals from any quarter and call for international bids based on tender documents prepared in Sri Lanka independently or with external collaboration when necessary, without assigning them to designated entities based on geopolitical compulsions; an example being the West Container Terminal.

These recommendations are presented with a view to ensuring that Sri Lanka retains its independence, its sovereignty, its territorial integrity and develop as a free Nation State.