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Domestic laws to address accountability

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“the general principles of law recognized by civilized nations” (emphasis added). Based on this logic what is proposed herein is that the entire exercise of addressing accountability should be based on the provisions as laid out in the Protocol Additional to the Geneva Conventions applicable to Non-International Armed Conflict as had occurred in Sri Lanka.

by Neville Ladduwahetty

 

With the UN Human Rights sessions in Geneva starting on 22 February, several commentators have expressed opinions as to how Sri Lanka should address the issues raised in the Report of the UN High Commissioner for Human Rights. Others, some with extremely impressive credentials, have been more specific and confined themselves to issues relating to accountability.

The prevailing perception is that domestic legal provisions are inadequate to address issues relating to accountability applicable to the armed conflict in Sri Lanka that ended in May 2009. Furthermore, this perception is reinforced by the belief that Sri Lanka is not in a position to avail itself of international provisions relating to armed conflict, not only because Sri Lanka has not been a signatory to such instruments, but also because even those that Sri Lanka was a signatory to have not been incorporated into domestic law; a requirement imposed by the dualist system that Sri Lanka is committed to.

For instance, according to the latter perception the provisions in Additional Protocol II of 1977 that are applicable to Non-International Armed Conflict cannot be applied to the Non-International Armed Conflict in Sri Lanka because Sri Lanka is not a signatory to this Protocol. This perception is seriously flawed because it fails to accept the provision in the second paragraph of Article 13 (6) in Sri Lanka’s constitution that recognizes the principle that laws recognized by the “community of nations” have a relevance that cannot be ignored in domestic jurisprudence.

 

LAW RECOGNIZED by the COMMUNITY of NATIONS

Article 13 (6) states:

“(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.

Therefore, an act that did NOT constitute an offence under domestic law could be a “criminal” act according to the “general principles of law recognized by the community of nations”, where an accused could be tried and punished.

The principle of giving recognition to “general principles of law recognized by the community of nations” is also incorporated in Article 38 of the Statutes of the International Court of Justice (ICJ). Article 38 states:

“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

c. the general principles of law recognized by civilized nations”.

As far as issues of accountability during an armed conflict are concerned, general principles of both International Humanitarian Law (IHL) and International Human Rights Law (IHRL), subject to derogation, are recognized by the community of nations as part of the body of international law. International Humanitarian Law embodies laws that govern both International and Non-International Armed Conflicts. The source of these laws are the four Geneva Conventions of 1949. They are universally accepted by the community of nations as the laws that govern Armed Conflict. Article 3 that relates to Non-International armed conflict are common to all four Geneva Conventions, hence it is often referred to as “common article 3 of the Geneva Conventions”.

Since the four Geneva Conventions are universally accepted by the community of nations as laws that govern armed conflict, and Article 3 is common to all four, it must necessarily follow that Article 3 is also universally acceptable to the community of nations. Furthermore, because one Article was found to be inadequate to address the complexities of numerous non-international armed conflict that sprang up following decolonization after World War II, a body of experts developed Additional Protocol II in 1977. Therefore, since the Additional Protocol is an extension of common Article 3, Protocol II Additional to the Geneva Conventions should ipso facto be part of the body of laws acceptable to the community of nations. This makes common Article 3 and by extension Additional Protocol II of 1977 acceptable to the community of nations. And because of it, Additional Protocol II of 1977 should be the basis to address accountability issues relating to Sri Lanka’s Armed Conflict.

 

Its full title is:

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II)

Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law applicable in Armed Conflicts
Entry into force: 7 December 1978, in accordance with Article 23

 

ADITIONAL PROTOCOL II to ADDRESS ACCOUNTABILITY

Since the text of the Protocol in respect of acts that are prohibited during a non-international armed conflict are similar to common Article 3, addressing issues of accountability based on the provisions of the Additional Protocol II is justified and therefore should be acceptable to the community of nations. The relevant sections of each are presented below.

 

Common Article 3

“To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.

 

Part II of the Additional Protocol states:

1. “All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors”.

2. “Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:

(a) Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Slavery and the slave trade in all their forms; (g) Pillage; (h) Threats to commit any of the foregoing acts”.

In view of the prohibited acts listed above it is pertinent to ascertain whether a person found guilty of having committed any of the acts listed above could be punished under existing provisions of Sri Lanka’s Penal Code. If current provisions of the Penal Code are in fact sufficient to address violations alleged to have been committed during the final stages of Sri Lanka’s Armed Conflict, there is nothing to prevent Sri Lanka from undertaking such an exercise provided the procedure laid out in Article 6 “Penal prosecution” of the Additional Protocol II of 1977 is followed. This Article is presented below:

 

SCOPE of SRI LANKA’s PENAL CODE

Judging from the nature of the alleged violations committed by the Security Forces, particularly during the final stages of the armed conflict, the appropriate section of Sri Lanka’s Penal Code would be in Chapter XVI titled “OF OFFENCES AFFECTING THE HUMAN BODY and OF OFFENCES AFFECTING LIFE”. A few of the offences listed in this Chapter are: (a) Culpable homicide and murder; (b) Grievous hurt and voluntarily causing hurt; (c) Wrongful restraint and wrongful confinement; (d) Criminal force and assault; (e) Kidnapping, abducting and serfdom and slavery and recruitment of children for use in armed conflict; (f) Rape and grave sexual abuse. In addition to the broad scope of offences presented above, the Penal Code lists a range of offences that expand the scope beyond the narrow limits of the list presented.

It is therefore self-evident that the Penal Code in its current form would be sufficient to address issues of accountability based on the nature of violations alleged to have been committed by the Security Forces, provided the procedure outlined in Article 6 of the Additional Protocol of 1977 is followed, which in essence is: “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”.

 

Additional Protocol II of 1977

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.

 

CONCLUSION

UNHRC Resolution 30/1 that was co-sponsored by the former government was of the view that accountability could be addressed only by establishing “a judicial mechanism with a special counsel that included the special counsel’s office of Commonwealth and other foreign judges, defence lawyers, etc…” (Paragraph 6). This view is endorsed by those who have doubts about the competence of the existing law and order system to address issues of accountability in a credible manner.

Instead, of adopting the arrangement proposed in Resolution 30/1, what is proposed herein is that accountability is addressed using laws recognized by the community of nations, starting with the Geneva Conventions that are universally acceptable. Furthermore, Article 13 (6) of Sri Lanka’s constitution also gives special recognition to principles of law recognized by the community of nations.

More specifically, what is relevant to Sri Lanka is common Article 3 applicable to Non-International Armed Conflict. This single Article was found to be inadequate to address the complexities of internal conflicts that sprang up with decolonization following the conclusion of World War II. As a result, common Article 3 was expanded in scope and adopted as “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II)

The logic that follows is that if Geneva Conventions are accepted by the community of nations, then it must follow that common Article 3 of the Geneva Conventions and its extension in the Protocol Additional to the Geneva Conventions should also be acceptable to the community of nations, regardless of whether it was ratified by a State or not. Furthermore, Article 38 of the Statutes of the International Court of Justice base their judgments on “the general principles of law recognized by civilized nations” (emphasis added).

Based on this logic what is proposed herein is that the entire exercise of addressing accountability should be based on the provisions as laid out in the Protocol Additional to the Geneva Conventions applicable to Non-International Armed Conflict as had occurred in Sri Lanka. Since the Protocol specifies acts that are prohibited during a Non-International Armed Conflict and Sri Lanka’s Penal Code also identifies similar acts as criminal, no barrier should exist to address issues of accountability under existing judicial arrangements and provisions of law, provided the procedures adopted are those outlined in Additional Protocol II 0f 1977. It is time governments give serious consideration to this proposal, for the sake of those that gave their full measure of devotion to make the country whole and its people safe.

 

 

 

 

 



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Features

Strong on vocals

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The group Mirage is very much alive, and kicking, as one would say!

Their lineup did undergo a few changes and now they have decided to present themselves as an all male group – operating without a female vocalist.

At the helm is Donald Pieries (drums and vocals), Trevin Joseph (percussion and vocals), Dilipa Deshan (bass and vocals), Toosha Rajarathna (keyboards and vocals), and Sudam Nanayakkara (lead guitar and vocals).

The plus factor, where the new lineup is concerned, is that all five members sing.

However, leader Donald did mention that if it’s a function, where a female vocalist is required, they would then feature a guest performer.

Mirage is a very experience outfit and they now do the Friday night scene at the Irish Pub, in Colombo, as well as private gigs.

 

 

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Dichotomy of an urban-suburban New Year

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Ushered in by the ‘coo-ee’ of the Koel and the swaying of Erabadu bunches, the Sinhala and Tamil New Year will dawn in the wee hours of April 14. With houses to clean, preparation of sweetmeats and last-minute shopping, times are hectic…. and the streets congested.

It is believed that New Year traditions predated the advent of Buddhism in the 3rd century BC. But Buddhism resulted in a re-interpretation of the existing New Year activities in a Buddhist light. Hinduism has co-existed with Buddhism over millennia and no serious contradiction in New Year rituals are observed among Buddhists and Hindus.

The local New Year is a complex mix of Indigenous, Astrological, Hindu, and Buddhist traditions. Hindu literature provides the New Year with its mythological backdrop. The Prince of Peace called Indradeva is said to descend upon the earth to ensure peace and happiness, in a white carriage wearing on his head a white floral crown seven cubits high. He first plunges, into a sea of milk, breaking earth’s gravity.

The timing of the Sinhala New Year coincides with the New Year celebrations of many traditional calendars of South and Southeast Asia. Astrologically, the New Year begins when the sun moves from the House of Pisces (Meena Rashiya) to the House of Aries (Mesha Rashiya) in the celestial sphere.

The New Year marks the end of the harvest season and spring. Consequently, for farming communities, the traditional New Year doubles as a harvest as well. It also coincides with one of two instances when the sun is directly above Sri Lanka. The month of Bak, which coincides with April, according to the Gregorian calendar, represents prosperity. Astrologers decide the modern day rituals based on auspicious times, which coincides with the transit of the Sun between ‘House of Pisces’ and ‘House of Aries’.

Consequently, the ending of the old year, and the beginning of the new year occur several hours apart, during the time of transit. This period is considered Nonegathe, which roughly translates to ‘neutral period’ or a period in which there are no auspicious times. During the Nonegathe, traditionally, people are encouraged to engage themselves in meritorious and religious activities, refraining from material pursuits. This year the Nonegathe begin at 8.09 pm on Tuesday, April 13, and continues till 8.57 am on 14. New Year dawns at the halfway point of the transit, ushered in bythe sound of fire crackers, to the woe of many a dog and cat of the neighbourhood. Cracker related accidents are a common occurrence during new year celebrations. Environmental and safety concerns aside, lighting crackers remain an integral part of the celebrations throughout Sri Lanka.

This year the Sinhala and Tamil New Year dawns on Wednesday, April 14, at 2.33 am. But ‘spring cleaning’ starts days before the dawn of the new year. Before the new year the floor of houses are washed clean, polished, walls are lime-washed or painted, drapes are washed, dried and rehang. The well of the house is drained either manually or using an electric water pump and would not be used until such time the water is drawn for first transaction. Sweetmeats are prepared, often at homes, although commercialization of the new year has encouraged most urbanites to buy such food items. Shopping is a big part of the new year. Crowds throng to clothing retailers by the thousands. Relatives, specially the kids, are bought clothes as presents.

Bathing for the old year takes place before the dawn of the new year. This year this particular auspicious time falls on April 12, to bathe in the essence of wood apple leaves. Abiding by the relevant auspicious times the hearth and an oil lamp are lit and pot of milk is set to boil upon the hearth. Milk rice, the first meal of the year, is prepared separate. Entering into the first business transaction and partaking of the first meal are also observed according to the given auspicious times. This year, the auspicious time for preparing of meals, milk rice and sweets using mung beans, falls on Wednesday, April 14 at 6.17 am, and is to be carried out dressed in light green, while facing east. Commencement of work, transactions and consumption of the first meal falls on Wednesday, April 14 at 7.41 am, to be observed while wearing light green and facing east.

The first transaction was traditionally done with the well. The woman of the house would draw water from the well and in exchange drop a few pieces of charcoal, flowers, coins, salt and dried chillies into the well, in certain regions a handful of paddy or rice is also thrown in for good measure. But this ritual is also dying out as few urban homes have wells within their premises. This is not a mere ritual and was traditionally carried out with the purification properties of charcoal in mind. The first water is preferably collected into an airtight container, and kept till the dawn of the next new year. It is believed that if the water in the container does not go down it would be a prosperous year. The rituals vary slightly based on the region. However, the essence of the celebrations remains the same.

Anointing of oil is another major ritual of the New Year celebrations. It falls on Saturday, April 17 at 7.16 am, and is done wearing blue, facing south, with nuga leaves placed on the head and Karada leaves at the feet. Oil is to be applied mixed with extracts of Nuga leaves. The auspicious time for setting out for professional occupations falls on Monday, April 19 at 6.39 am, while dressed in white, by consuming a meal of milk rice mixed with ghee, while facing South.

Traditionally, women played Raban during this time, but such practices are slowly being weaned out by urbanization and commercialisation of the New Year. Neighbours are visited with platters of sweetmeats, bananas, Kevum (oil cake) and Kokis (a crispy sweetmeat) usually delivered by children. The dichotomy of the urban and village life is obvious here too, where in the suburbs and the village outdoor celebrations are preferred and the city opts for more private parties.

 

 

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New Year games: Integral part of New Year Celebrations

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Food, games and rituals make a better part of New Year celebrations. One major perk of Avurudu is the festivals that are organised in each neighbourhood in its celebration. Observing all the rituals, like boiling milk, partaking of the first meal, anointing of oil, setting off to work, are, no doubt exciting, but much looked-forward-to is the local Avurudu Uthsawaya.

Avurudu Krida or New Year games are categorised as indoor and outdoor games. All indoor games are played on the floor and outdoor games played during the Avurudu Uthsava or New Year festival, with the whole neighbourhood taking part. Some of the indoor games are Pancha Dameema, Olinda Keliya and Cadju Dameema. Outdoor games include Kotta pora, Onchili pedeema, Raban geseema, Kana mutti bindeema, Placing the eye on the elephant, Coconut grating competition, Bun-eating competition, Lime-on-spoon race, Kamba adeema (Tug-o-War) and Lissana gaha nageema (climbing the greased pole). And what’s an Avurudhu Uthsava sans an Avurudu Kumari pageant, minus the usual drama that high profile beauty pageants of the day entail, of course.

A salient point of New Year games is that there are no age categories. Although there are games reserved for children such as blowing of balloons, races and soft drinks drinking contests, most other games are not age based.

Kotta pora aka pillow fights are not the kind the average teenagers fight out with their siblings, on plush beds. This is a serious game, wherein players have to balance themselves on a horizontal log in a seated position. With one hand tied behind their back and wielding the pillow with the other, players have to knock the opponent off balance. Whoever knocks the opponent off the log first, wins. The game is usually played over a muddy pit, so the loser goes home with a mud bath.

Climbing the greased pole is fun to watch, but cannot be fun to take part in. A flag is tied to the end of a timber pole-fixed to the ground and greased along the whole length. The objective of the players is to climb the pole, referred to as the ‘tree’, and bring down the flag. Retrieving the flag is never achieved on the first climb. It takes multiple climbers removing some of the grease at a time, so someone could finally retrieve the flag.

Who knew that scraping coconut could be made into an interesting game? During the Avurudu coconut scraping competition, women sit on coconut scraper stools and try to scrape a coconut as fast as possible. The one who finishes first wins. These maybe Avurudu games, but they are taken quite seriously. The grated coconut is inspected for clumps and those with ungrated clumps are disqualified.

Coconut palm weaving is another interesting contest that is exclusive to women. However men are by no means discouraged from entering such contests and, in fact, few men do. Participants are given equally measured coconut fronds and the one who finishes first wins.

Kana Mutti Bindima involves breaking one of many water filled clay pots hung overhead, using a long wooden beam. Placing the eye on the elephant is another game played while blindfolded. An elephant is drawn on a black or white board and the blindfolded person has to spot the eye of the elephant. Another competition involves feeding the partner yoghurt or curd while blindfolded.

The Banis-eating contest involves eating tea buns tied to a string. Contestants run to the buns with their hands tied behind their backs and have to eat buns hanging from a string, on their knees. The one who finishes his or her bun first, wins. Kamba adeema or Tug-o-War pits two teams against each other in a test of strength. Teams pull on opposite ends of a rope, with the goal being to bring the rope a certain distance in one direction against the force of the opposing team’s pull.

Participants of the lime-on-spoon race have to run a certain distance while balancing a lime on a spoon, with the handle in their mouths. The first person to cross the finish line without dropping the lime wins. The sack race and the three-legged race are equally fun to watch and to take part in. In the sack race, participants get into jute sacks and hop for the finish line. The first one over, wins. In the three-legged race one leg of each pair of participants are tied together and the duo must reach the finish line by synchronising their running, else they would trip over their own feet.

Pancha Dameema is an indoor game played in two groups, using five small shells, a coconut shell and a game board. Olinda is another indoor board game, normally played by two players. The board has nine holes, four beads each. The player who collects the most number of seeds win.

This is the verse sung while playing the game:

“Olinda thibenne koi koi dese,

Olinda thibenne bangali dese…

Genath hadanne koi koi dese,

Genath hadanne Sinhala dese…”

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