By Neville Ladduwahetty

From 2012, Reconciliation and Accountability have been the twin pillars of the series of Resolutions that emerged from the UN Human Rights Council in Geneva. Perhaps, the thinking of those who developed the formula of linking Reconciliation with Accountability was guided by the notion that an effective accountability process that holds some members of the security forces and the associated leaders accountable and punished would somehow ease the humiliation of defeat, and make the painful processes of healing and eventual reconciliation more tolerable.

In general, this notion presumes that retributive justice would promote reconciliation. The presumption of such an outcome is not an assured given because the possibility exists for the positions of the parties hoping to reconcile to harden to a point of defeating the intended objective of reconciliation if retributive processes and their outcomes are perceived as being vindictive. Thus, the contemplated accountability exercise has the potential to be counterproductive depending on the context in which it is conducted.

SRI LANKAN EXPERIENCE

In the case of Sri Lanka, this theory could not be put to the test because the retributive process could not even get started. The reason for this being that those who devised the process overextended themselves and wanted the accountability process to be so effective that they conceived only a judicial mechanism that involved foreign judges, prosecutor etc. would achieve the intended objectives. The fact that such an arrangement would involve amending existing Laws and provisions in the Constitution, to the extent of requiring a two-third approval by Parliament and approval by the People at a referendum, escaped their attention.

This was brought to the attention of the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.

“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”.

This gave the present Government legitimate grounds to withdraw from the co-sponsorship of UNHRC Resolution 30/1 in terms of Article 46 of the Vienna Convention 1969, which in essence states that a State may invalidate its consent to a Treaty if it violates a rule of its internal law of fundamental importance such as a Constitution of a sovereign State.

CURRENT SITUATION

Currently, the accountability process is at a stand-still because of the failure of the approach adopted. However, what exists is a collective body of material available in Reports prepared externally by the Panel of Experts appointed by the UN Secretary General and by the Office of the Human Rights Commission in Geneva together with internal Reports of Commissions of Inquiry appointed by the Government of Sri Lanka such as the Lessons Learnt and Reconciliation Commission (LLRC), and the Paranagama Commission that included International Experts.

This body of material has been reviewed from two distinct perspectives. Since the mandate to the LLRC was primarily to promote national unity and reconciliation among communities, its Report gives emphasis to Human Rights as reflected in paragraphs 5.2 and 5.3 cited below. On the other hand, the other Reports reflect a perspective that is based on International Humanitarian Law (IHL) as the applicable Law since the conflict had reached the threshold of a non-International Armed Conflict. Consequently, the material reviewed from a Human Rights perspective is bound to be different to a review based on IHL. Of the several reasons for this difference the most significant is that the LLRC viewed the conflict as between a State (GoSL) and a non-state actor (LTTE), thereby holding the State to a higher level of accountability than the LTTE, while under the perspective of IHL, responsibilities are shared equally as parties to an Armed Conflict. This makes the conclusions drawn from the respective perspectives different.

Paragraph 5.2 states: “Being a party to the following seven core international human rights instruments, Sri Lanka has given obligations under these Conventions through legislative measures, including the Constitution as well as executive and administrative measures”

Paragraph 5.3 states: “Sri Lanka therefore has constitutional and international obligations for the effective national implementation of these core conventions both during times of peace and war, and in the latter situation, together with applicable International Humanitarian Law…”.

It is therefore evident from the foregoing that the LLRC emphasis is on Human Rights with “applicable International Humanitarian Law’ during times of war. Had the LLRC recognized that it was a non-International Armed Conflict from the day the Cease Fire Agreement was signed as two parties recognized nationally and internationally to the conflict, the accepted applicable Law should have been International Humanitarian Law coupled with seriously derogated Human Rights during an Armed Conflict. This interpretation is reflected in the Sri Lankan Constitution and in the relevant Conventions during an Emergency as in the case of an Armed Conflict. The failure of the LLRC to recognize that it was a non-International Armed Conflict is the significant reason for its perspective to be different to the other Reports cited above.

LLRC’s INTERPRETATION of ACCOUNTABILITY

The material presented below are extracts from Chapter 9 of the LLRC Report titled “Summary of Principal Observations and Recommendations”. Since the two primary charges against the Government and the Security Forces are the excessive use of force and the inadequacies in the delivery of humanitarian aid, the two related sub-section from the LLRC Report presented below are: (1) “Measures to safeguard civilians and avoid civilian casualties” and (2) “Supply of humanitarian relief, including food and medicine to civilians in conflict zone”.

“Measures to safeguard…and No-Fire Zones”:

Paragraph 9.4: “In evaluating the Sri Lankan experience in the context of allegations of violations of IHL, the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority…”

9.7 Having reached the above conclusion, it is also incumbent on the Commission to consider the question, while there is no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality…”

COMMENT: The two fundamental principles of International Humanitarian Law are: Distinction and Proportionality. Without Distinction as to who is a combatant and who is a civilian to question whether the military response was proportionate or excessive cannot be ascertained. Since the LLRC Report admits that the LTTE shed their uniforms during the final states of the conflict, the question of distinguishing a civilian from a combatant is not possible, which means the principle of Proportionality cannot be applied. Furthermore, the comment that the Security Forces were “RETURNING fire to the NFZs” makes clear that it was the LTTE in the NFZs that initiated the firing. Despite the obvious presence of LTTE combatants, the LLRC Report makes no reference to them and refers to ALL as civilians.

Therefore, to categorize ALL in the NFZs as civilians and to question whether the return of fire was excessive in the context of the Principle of Proportionality that has no applicability in the particular circumstances, is seriously flawed.

In regard to “Hospitals/Makeshift Hospitals paragraph 9.12 (b) of the LLRC report states: “None of the persons making representations was able to state with certainty that they were in a position to definitely confirm that the shells which fell on the hospitals, originated exclusively from the side of the Sri Lankan Army or from the LTTE…Another ex-LTTE cadre…stated that the Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologized”.

Supply of Humanitarian Relief

Paragraph 9.15: “The Commission notes that the supply of food to the civilians held by the LTTE up to early 2009 was at reasonably adequate levels…However, these adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009…”

Paragraph 9.16: “It must be acknowledged that the maximum quantities of food supplies, that were possible…due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the No Fire Zone”.

The impression conveyed in the above comments is that the Government of Sri Lanka was responsible for and obligated to supply humanitarian relief to All in the No Fire Zone. Since it was not possible to separate combatants from civilians, this meant supplying humanitarian aid including medical supplies to the LTTE and engaging with them in an Armed Conflict, simultaneously. Such a flawed expectation is a result of the confused perspective adopted by the Commission as to the role of the Government. How could the Government be a party to the conflict and be a provider of humanitarian aid both at the same time?

COMMENT: Had the LLRC accepted IHL as the applicable Law, they would not have held the Government of Sri Lanka accountable for the “decline” in the supply of relief. The reason for including the Government in the list of those responsible for the supply of humanitarian relief is because their understanding of the Government’s responsibilities was misplaced. The Commission fails to acknowledge that the Government as a party to the Armed Conflict, should not be expected to supply aid of any kind to the LTTE. Instead, what the Government was expected to do was ONLY to facilitate free passage of humanitarian aid to those affected by the Armed Conflict as per ICRC Rules 55 and 56 (Vol. 87, Number 857 March 2005).

Rule 55: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse, distinction, subject to their right of control”

Rule 56: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in the case of imperative necessity may their movements be temporarily restricted”.

PROPOSED STRATEGY

There are two basic approaches that Sri Lanka could take in presenting its case before the forthcoming sessions in Geneva. One approach is to plead its case by presenting all the available evidence from sources such as that of Lord Naseby, UN Reports, opinions of experts in the Paranagama Commission Report and any other sources challenging the alleged claims in the UNHRC Resolution 30/1. The other is to challenge the alleged violations on the basis of International Humanitarian Law, backed up with support material referred to above. Of these two approaches there is a greater likelihood of the latter approach being more acceptable because it has a more credible basis than the former.

CONCLUSION

When Sri Lanka placed on record at the March 2019 UNHRC sessions that it was withdrawing from the co-sponsorship of UNHRC Resolution 30/1, it undertook, among other undertakings, to appoint a Commission of Inquiry “to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law, to assess the status of implementation of their recommendations and to propose deliverable measures to implement them in keeping with the new Government’s policy”.

The plea to anyone engaged in fulfilling the commitment stated above is to declare at the very outset that its review of reports of previous COIs is based on the fact that the conflict in Sri Lanka that ended in May 2009 was a non-International Armed Conflict, as recognized by international law. Consequently, the review process should bear in mind that the applicable Law is International Humanitarian Law together with derogated Human Rights Laws as reflected in International Covenants and in Sri Lanka’s Constitution during an Emergency. Therefore, the alleged violations presented in these Reports should be assessed in the context of these Laws, backed up with support material such from UN Reports, evidence presented by Lord Naseby, opinions of experts in the Paranagama Commission Report, and by the ICRC, etc.. Since the Additional Protocol II of 1977 is accepted as part of Customary Law and the fact that it embodies all recognized provisions of non-International Armed Conflict, the provisions of the Protocol should guide the review process of alleged violations committed collectively or individually.

The review process should also identify which recommendations in the Commission of Inquiry Reports relating to Reconciliation are deliverable in keeping with Government policy. In this regard one measure that would make a significant difference to Reconciliation is to demand tangible outcomes from the Office of Missing Persons, bearing in mind that their work could be constrained by the non-cooperation of Member States if they fail to disclose the identities of persons missing from Sri Lanka and who are now living in their countries under altered identities.

The forthcoming sessions in Geneva would be a defining moment for Sri Lanka in its relations with the UNHRC. Therefore, the Government should conclude its review process well in time, in order to enable it to canvas support among the members of the UN Human Rights Council on the basis of the legitimacy of the approach taken and bring closure to Accountability. At the same time the UN Human Rights Council should permit Sri Lanka the time and space to address Reconciliation through processes that each country has to fashion because its uniqueness is special to every country, and no country or International Agency has a universal formula to bring about Reconciliation among communities in a country.

Neville Ladduwahetty

November 15, 2020.