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UNHRC initiated inquiry on Sri Lanka

2014 Jul 16

By Neville Ladduwahetty

It is reported that the infrastructure is in place for the UNHRC-initiated International inquiry on Sri Lanka to commence operations. However, the Terms of Reference/Remit for the conduct of the inquiry have not been reported. This is unusual because the accepted practice is that any inquiry should be conducted within stipulated parameters set by the remit to the inquiring body.

In the absence of a formal remit to guide the International inquiry on Sri Lanka it is likely that this inquiring body would use the resolution itself as the remit for the inquiry. In such an event it is vital that resolution A/HRC/25/L.1/Rev.1 titled "Promoting reconciliation, accountability and human rights in Sri Lanka" be scrutinized to ascertain what provisions in the Resolution could likely be used as the remit for the inquiry.

A Preamble to a resolution generally sets the background that would form the basis for the text of the Resolution. Therefore, a Preamble should reflect the scope and content of the text itself. This premise makes it necessary for there to be consistency between the preamble and the text. It is only then that the preamble would be establishing the context for the text of the resolution on which the Council decides to support, oppose or abstain.

The inconsistencies between preamble and text in resolution A/HRC/25/L.1/Rev.1 are addressed below.

PREAMBLE of the UNHRC RESOLUTION

An item in the preamble states: "Reaffirming further that States must ensure that any measure taken to combat terrorism complies with their obligation under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable".

This places obligations for compliance with provisions of International Law only on the legitimate State and not on non-state actors involved in a conflict. The distinction in the particular case of Sri Lanka was that the conflict had reached the threshold of a Non-international Armed Conflict thereby obligating both parties to the conflict.

The Cease Fire Agreement (CFA) that became effective in February 2002 recognized the LTTE as a party to the conflict in Sri Lanka because they possessed all the internationally recognized attributes of a regular army with uniformed Land, Naval and Air combatants under a command and control structure, and territory recognized as "LTTE controlled areas" from which they carried out sustained terrorist attacks and military operations. Therefore, by holding only the State (Sri Lanka) responsible, the preamble fails to recognize the country-specific nature of the conflict in Sri Lanka. This oversight has resulted in the preamble requiring only the State of Sri Lanka to comply with international law obligations, and not the LTTE.

However, while the preamble holds ONLY the State responsible for conformance with international law, paragraphs 2 and 10 (b) of the text hold both parties to the conflict responsible for violations of international law.

TEXT of the UNHRC RESOLUTION

Paragraph 2 of the text "…calls upon the Government of Sri Lanka to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law as applicable; to hold accountable those responsible for such violations;…".

Paragraph 10 (b) of the text states: "To undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission…". Consequently, the time frame has been set as February 2002 to May 2009.

IMPLICATIONS of DIFFERENCES in

the REMITS

The contrast between the remit in paragraph 2 and paragraph 10 (b) is significant. While paragraph 2 requires the Government of Sri Lanka is to evaluate violations committed under provisions of BOTH international human rights law and international humanitarian law, paragraph 10(b) is expected to undertake "serious violations and abuses" ONLY of "human rights and related crimes by both parties….."

As stated earlier, since the LTTE was recognized as a party to the conflict under the internationally arranged CFA, the conflict in Sri Lanka can justifiably be categorized as a Non-International Armed Conflict with all the obligations and responsibilities that come with such a categorization applying to all parties involved in the conflict. Therefore, investigations of violations and abuses by both parties should be under provisions ONLY of International Humanitarian Law, and wherever applicable International Human Rights law. but clearly NOT under provisions of international Human Rights law alone. This should be the remit for the International Investigation. Therefore, if the investigation is conducted in the context of Human Rights violations alone, it would be seriously flawed.

Human rights are rights enshrined in the Universal Declaration of Human Rights. The Declaration embodies the rights an individual could expect from their Governments. Generally, human rights are understood to regulate the relationship between the State and the individual in the context of ordinary life, i.e. at peacetime. They are the basic rights and freedoms to which all human beings are entitled; such as civil and political rights, the right to life and liberty, freedom of thought and speech/expression, equality before the law, social, cultural and economic rights, the right to food, the right to work, and the right to education. However, because some of these rights are violated and others compromised during conflicts, with violations varying with the intensity and scale of conflict, there are NO established benchmarks, parameters or standards of Human Rights to guide an investigation into abuses that occur during a conflict.

In short, no Human Rights laws exist to guide an investigation into violations and abuses during a Non-International Armed Conflict. Therefore, it is obligatory on the part of the OHCHR and those engaged in the inquiry to publish the criteria they hope to use to identify and specify the Human Rights applicable when investigating violations and abuses during Sri Lanka's Non-International Armed Conflict.

During a conflict however, it is International Humanitarian Law that guides the relationship between the State and individuals engaged, and those who are neutral. If the conflict reaches the threshold of a Non-International Armed Conflict, violations and abuses that could occur during such a conflict should be investigated under provisions of Additional Protocol II of 1977, which specifically govern Non-International Armed conflict. Since Sri Lanka's conflict had reached such a threshold, any investigations into violations should be guided by Rules as set out in the above Protocol.

CONCLUSION

The entire investigation pertaining to Sri Lanka set up the Office of the High Commissioner for Human Rights (OHCHR) should be rejected on 3 counts:

1. There are contradictions between the preamble and the text. For instance, the preamble holds the State (Sri Lanka) responsible for violations under international law while the text holds both parties (Sri Lanka and the LTTE) responsible for violations of international law.

2. Paragraph 10 (b) of the resolution calls on the OHCHR to "undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka…". Since internationally recognized Human Rights parameters, benchmarks and standards do not exist to guide an investigation, the panel appointed to investigate would need to develop new guidelines before any investigation could commence. However, since such guidelines do not have the approval of a recognized authority, they will have no legitimacy.

3. Since the conflict in Sri Lanka had reached the threshold of a Non-International Armed Conflict by all acceptable standards including that of the Panel of Experts appointed by the UN Secretary General, the relevant basis for investigating any violations should be International Humanitarian Law and NOT Human Rights Law. Therefore, the criterion of Human Rights set out in the resolution as the basis for investigation is wrong and has no legitimacy.

The 3 issues cited above are grounds for rejecting the investigation. Furthermore, this resolution sets in place a precedent that would grant the OHCHR the right to investigate any conflict in any country if the country concerned does not carry out a "credible and comprehensive" investigation to the "satisfaction of the UNHRC".

The Foreign Minister of India is now reported to have informed Sri Lanka's External Affairs Minister that they are opposed to this resolution. In fact, India's Foreign Ministry spokesperson, Syed Akbaruddin has stated: "We feel that international bodies need to address human rights concerns in a cooperative manner with the countries concerned and not in a punitive manner" (Daily Mirror, July 12, 2014). In view of India's opposition to the resolution, Sri Lanka and India in association with other countries should jointly adopt measures to prevent the implementation of this resolution because the precedent set in place would have a direct bearing on the self interests of each and every one of them.

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