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by Neville Ladduwahetty

Addressing the 51st Session of the Human Rights Council, the UN Acting High Commissioner stated: “Thirteen years since the end of the war, tens of thousands of survivors and their families continue to seek justice and to know the truth about the fate of their loved ones. They remain in need of reparations. The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations. Rather, as described in our previous reports, successive governments have created political obstacles to accountability, actively promoted and incorporated some military and former paramilitary officials credibly implicated in alleged war crimes into the higher levels of government, and have failed to present a shared understanding of the conflict and its root cause”.

Continuing, the Acting High Commissioner stated: “It is the hope of this office that the Government will now seize the opportunity offered by the changed circumstances in the country to re-embark on these fundamental processes that promote national reconciliation by ensuring accountability for past human rights violations and abuses. In the absence of current and effective accountability options in Sri Lanka, the High Commissioner has called on States to pursue alternate strategies to advance the accountability at the international level, including through consideration of targeted sanctions against alleged perpetrators as well as cooperation to initiate prosecutions on the basis of extraterritorial and universal jurisdiction.

The focus of this article is on the comment that “The Sri Lankan State has repeatedly failed to pursue an effective transnational justice process and uphold victims right to truth, justice and reparations”.

EXPERIENCES of TRUTH and JUSTICE

MECHANISMS

If Sri Lanka is to “seize the opportunity offered by the changed circumstances”, a significant contribution towards this endeavour could be made by the UNHRC by clearly outlining what it means by an “effective transitional process” and propose a suitable framework for Sri Lanka to seize the opportunity, instead of repeatedly referring to the failure of the Sri Lankan State. Judging from the variety of processes adopted by other countries and their experiences, no country has succeeded in developing an “effective transitional process”, least of all the much hyped TRC of South Africa that focused on a restorative process of “healing the nation” and therefore not on a retributive process of prosecution. Therefore, for the sake of all concerned, the Acting High Commissioner should at this juncture outline whether Sri Lanka should adopt a restorative process with reconciliation in mind, or adopt a retributive process and resort to prosecutions, bearing in mind the inevitable consequences that are associated with each choice.

A word of caution to the Acting High Commissioner is not to expect transitional justice processes for Sri Lanka to be similar to the processes adopted by South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina because they were all internal armed conflicts, while the conflict in Sri Lanka was a Non-International Armed Conflict, as provided in Common Article 3 of all the Geneva Conventions. This difference was recognized by the UNHRC in their OISL Report (OHCHR Investigation on Sri Lanka – OISL).

As for the internationally recognized TRC of South Africa, its legacy, according to Dr. Desmond Tutu, was: “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”.

Unlike in the case of domestic settings where human rights violations are addressed through criminal investigations, prosecution and possible conviction, the experience of countries that have attempted to establish Truth and Justice Mechanisms following serious crimes in the context of internal armed conflicts is to prosecute only those believed to be most responsible while for the rest the Mechanism only serves as an opportunity to present their narrative as the “truth”.

An article that confirms such outcomes titled “Retribution and Reconciliation: War Crimes Tribunals and Truth Commissions – can they work together?” By Howard Varney, in Our Freedoms states: “At an international level the global community has reacted to massive human rights atrocities in the former Yugoslavia and in Rwanda with the establishment of international criminal tribunals. Smaller hybrid courts, involving both local and foreign judges, prosecutors and investigators have been set up in Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. In most of these cases the attempts to deliver justice have been confined to the prosecution of only those regarded to be most responsible for the violation of human rights. This strategy is born out of necessity”.

If this is the outcome of Truth and Justice Mechanisms, as far as the victims in Sri Lanka are concerned, the several Presidential Commissions provided the opportunity for them to convey their “truth” in the form of their narratives, and the justice that followed is in the form of ongoing reparations paid to them. As for prosecution of those responsible for serious violations of human rights and/or humanitarian law is concerned, existing legal provisions are in place through High Courts and Courts of Appeal assisted by the Human Rights Council of Sri Lanka for anyone who has access to credible evidence to avail themselves of this legal framework. This approach conforms with the procedures adopted under provisions of “Individual Penal liability”. This topic was dealt at length in a book titled “Our Fundamental Rights of Personal Security and Physical Liberty” (Justice A.R.B. Amerasinghe).

However, such prosecutions invariably polarize communities as has been the case in other countries, thus ending up being a deterrent to reconciliation. It is for this reason that many authorities find retributive approaches to address violations being incompatible with reconciliation; which incidentally, is the end goal following serious conflicts.

RECOMMENDATIONS of OISL REPORT of the OHCHR

Whether or not the approach as stated in the Report of the Office of the High Commissioner for Human Rights reaches the threshold of “effective transitional justice”, they have advocated that Article 3 common to all Geneva Conventions is applicable to the armed conflict that took place in Sri Lanka.

Furthermore, Paragraph 182 of the above Report states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common article 3 binds all parties to the conflict to respect as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely”.

Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict”.

Therefore, even if Sri Lanka has not ratified Additional Protocol II of 1977, Sri Lanka and the LTTE are bound alike by customary law, and taking civilians hostage and using them as a human shield, is a war crime and therefore a violation of customary law; a fact incorporated in Article 13 (6) of Sri Lanka’s Constitution that states: “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 general principles of law recognized by the community of nations”.

RELEVANCE of PARAGRAPH 183

If, as Paragraph 183 states “the Government and armed groups that are parties to the conflict are bound alike” by customary international law “applicable to non-international armed conflict”, it must then follow that the act by the LTTE of taking of tens of thousands hostage and using them as a human shield is a war-crime for which they must be held accountable. Furthermore, by doing so the LTTE not only violated the provisions codified in “Protocol Additional to the Geneva Conventions […] relating to the Protection of Victims of Non-International Armed Conflict, but is also responsible for being the cause for the disproportionately high number of deaths in the conflict zone.

This makes all the difference between internal armed conflicts as in the countries cited above, and those as in Sri Lanka that come within the purview of Protocol Additional to the Geneva Conventions relating to Non-International Armed Conflicts. This cardinal fact makes the intention of the Government to appoint a Truth and Reconciliation Commission modelled on South Africa’s TRC, totally inappropriate. Furthermore, the fact that Paragraph 183 binds the Government and the LTTE alike, the accountability for the deaths in the conflict zone and the reparations for the victims should be a shared responsibility and not entirely the responsibility of the Government, as conveyed repeatedly in UNHRC Resolutions.

CONCLUSION

The position being consistently taken by the Acting High Commissioner and her predecessors is that the Government of Sri Lanka is solely responsible for the human rights and humanitarian law violations. This is because they have categorised the conflict in Sri Lanka as an internal armed conflict, similar to conflicts that occurred in countries such as South Africa, Sierra Leone, East Timor, Cambodia and Bosnia and Herzegovina. However, as stated above, this is NOT the case with the armed conflict in Sri Lanka; a fact that is recognised and acknowledged in the OISL Report of the OHCHR – a part of the very Institution that the Acting High Commissioner represents. Furthermore, if political obstacles to accountability are not to be created, the UNHRC should caution the Government about setting up a Truth and Reconciliation Commission, modelled on South Africa’s TRC.

Therefore, instead of continuing to sing the same old refrain of Transitional Justice as being appropriate, it is about time that the UNHRC accepted the procedures laid out to address Accountability in the Protocol Additional to the Geneva Conventions as being the most appropriate as recommended in the OISL Report of the OHCRC. Furthermore, it should be acknowledged that the most serious violation, amounting to a war crime, was committed by the LTTE when they took hundreds of thousands of civilians, in the conflict zone, hostage and used them as a human shield for which there is no parallel.

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