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Incompatible UNHRC and UNSG's panel of experts guidelines

2014 Aug 28

By Neville Ladduwahetty

Paragraph 10 (b) of the UNHRC Resolution of March 2014 on Sri Lanka calls for the investigation of alleged HUMAN RIGHTS violations during the period February 2002 to May 2009. The UN Secretary General’s Panel of Experts, on the other hand, states that alleged violations during the "final states of the armed conflict" should be investigated on the basis of provisions of HUMANITARIAN LAW. These incompatible guidelines would set in place different parameters as to how accountability issues are investigated.

The UNSG’s Panel of Experts opined that International Humanitarian Law is what is applicable based on a ruling by the International Criminal Tribunal for former Yugoslavia (ICTY) for Armed Conflicts. The applicability of Humanitarian Law in Armed Conflicts is corroborated by the International Committee of the Red Cross (ICRC) as well. Since the Panel of Experts concluded that the conflict in Sri Lanka had reached the threshold of an Armed Conflict, HUMANITARIAN LAW should apply. Therefore, the ruling by the Panel of Experts has greater legal validity over the UNHRC Resolution to use HUMAN RIGHTS LAW as the basis on which to investigate the alleged violations.

HUMANITARIAN LAW is the body of Law that governs Armed Conflicts between States and conflicts within States that reach the threshold of an Armed Conflict as defined by the ICTY and/or the ICRC. The Geneva Conventions, Additional Protocols II of 1977 and the corpus of Customary Law developed by the ICRC form the body of Humanitarian Law that operates during conflict.

HUMAN RIGHTS LAW is the body of Law that citizens of States are entitled to from their respective Governments. These rights are embodied in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and a host of other International instruments. These rights are compromised depending on the intensity of a conflict.

PROOF of INCOMPATIBLE OPINIONS

Paragraph 10 (b) of the UNHRC resolution of March 2014 calls for the Office of the High Commissioner "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, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability , with assistance from relevant experts and special procedure mandate holders". The period covered by the Lessons Learnt and Reconciliation Commission (LLRC) was February 2002 to May 2009.

Chapter IV of the UNSG’s Panel of Experts (PoE) Report titled "Legal Evaluation of Allegations; Section A titled "Applicable Law", paragraph 181 states:

"International humanitarian law applies because the hostilities clearly met the threshold for an internal armed conflict, i.e., one involving protracted armed violence between the Government and organized armed groups. According to the International Criminal Tribunal for former Yugoslavia (ICTY), an armed conflict exists "whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized armed groups or between such groups within the State". 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 in the conflict of both the Government and the LTTE".

Paragraph 185 states:

"The Panel applies the rules of international humanitarian law to the credible allegations linked to the armed conflict, recognizing that many of these will also constitute violations of human rights. Since the conclusion of the war on 19 May 2009, international human rights law become the sole body of applicable law ...."

Summarizing these respective opinions:

UNHRC Resolution - February 2002 <——-Human Rights Law——— > to May 2009.

Panel of Experts <<——Humanitarian Law—— >May 2009<——Human Rights Law——>>

The Panel of Experts therefore clearly identifies different laws as being applicable to situations prior to May 2009 and after 2009 when investigating alleged violations. This is unlike the UNHRC Resolution that advocates the use of one law that being Human Rights Law to investigate alleged violations. Since the UNHRC does not offer an internationally recognized basis to justify its advocacy, grounds exist to reject any conclusions reached since it would be based on guidelines that do not have international acceptance.

Since the mandate of the Panel of Experts is limited to "during the final stages of the conflict" it is necessary to disregard the Report’s comments relating to issues outside the mandated time frame. This would be the Report’s comments on Human Rights issues after May 2009.

However, the Report’s comments relating to the final stages of the conflict could be addressed under the expanded mandate and particularly paragraph A. ii of the Paranagama Commission which states:

"Whether such loss of civilian life is capable of constituting collateral damage of a kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflict and is expressly recognized under laws of armed conflict and international humanitarian law, and whether such civilian casualties were either deliberate or unintended consequences of the rules of engagement during the said armed conflict in Sri Lanka".

The issues of alleged violations raised in the Panel of Experts Report could be effectively challenged under provisions of Additional Protocol II of 1977. Although Sri Lanka is not a signatory to Protocol II, most of the latter’s provisions are incorporated in ICRC’s Customary International Humanitarian Law (2005). These provisions should be effectively used to challenge the distortions in respect of civilian casualties raised by the Panel of Experts. A sufficient body of evidence from several sources exists to demonstrate that during the final stages it was neither physically possible to distinguish civilians from combatants, nor to distinguish how many participated voluntarily or under compulsion in the hostilities, thereby making them combatants and not civilians.

The charges of denying humanitarian aid to civilians during the conflict as a Human Rights violation should be met on grounds that the only obligation of a party to an Armed Conflict is to provide access and not to provide humanitarian aid itself. To claim non-delivery of humanitarian aid as a humanitarian violation (p. 49) is to ignore the Panel of Expert’s own categorization of the conflict as an Armed Conflict, which exempts this obligation.

THE LLRC PERSPECTIVE

The LLRC perspective is sharply different in scope and time frame to that taken by the Panel of Experts. While the Panel of Experts time frame is "the final stages of the conflict" during which Humanitarian Law would apply, the time frame of the LLRC is from February 2002 to May 2009 and the conflict is assessed as one between a State and a non-state actor. This position has been stated not once but repeated over and over. The consequence of this is that only domestic laws would apply (LLRC paragraph 4.326). Furthermore, it causes the State to be held to a higher standard than the non-state actor - the LTTE. The failure on the part of the LLRC to acknowledge that the conflict in Sri Lanka had reached a threshold that was unique and far beyond normal conflicts between State and non-state actors caused it to interpret the conflict as between a State and a non-state actor with its attended limitations in current legal provisions. This resulted in a skewed perspective.

Having devoted the entirety of Chapter 3 to outline provisions of International Humanitarian Law by addressing issues of distinction, proportionality and direct participation in hostilities, all of which relate to Armed Conflict, the LLRC proceeded to categorize the conflict as one between a State and a non-state actor. Had the LLRC categorized it as an Armed Conflict, the LLTE could justifiably have been held to the same standard as the Government in respect of compliance with Rules of War. The consequence of not doing so frees the LTTE of responsibilities that it would otherwise have been liable for and therefore accountable. This should be rectified by the Advisory Panel encouraging the Paranagama Commission to explore fully the provisions of (A ii) in the expanded mandate.

CONCLUSION

The guidelines set by the UNHRC Resolution of March 2014 on Sri Lanka are that the alleged violations are to be investigated under provisions of HUMAN RIGHTS LAW. The UN Secretary General’s Panel of Experts stated unequivocally that since the conflict in Sri Lanka had reached the threshold of an Armed Conflict, the applicable law to investigate alleged violations should be HUMANITARIAN LAW. Aside from these vastly divergent guidelines, the time frame for the UNHRC Resolution is from February 2002 to May 2009 while that of the UNSG’s Panel of Experts is the "final stages of the armed conflict".

How two organs of the United Nations set vastly different guidelines to investigate alleged violations is not only beyond comprehension but also has contributed to making the issue very complex, since different guidelines would result in two different assessments of accountability. The UN has to bear full responsibility for the inconsistency. The confusion of the Office of the High Commissioner is clear from the fact that the 2013 UNHRC Resolution called for "investigations into allegations of violations of international human rights law and international humanitarian law as applicable". However, in the 2014 Resolution, the UNHRC decided to limit investigations only to HUMAN RIGHTS LAW without explanation. Perhaps the reason for revising the scope of the investigation was because the UNHRC realized its limitations in that it did not have the mandate to investigate issues relating to HUMANITARIAN LAW.

Of all the reports and publications on the issue of accountability, only 2 reports have official standing: 1. The UNSG’s Panel of Experts report, and 2.The LLRC report commissioned by the Government of Sri Lanka. While the former takes the position that investigations of alleged violations should be based on HUMANITARIAN LAW. The latter (LLRC) takes the position that investigations should be based on the conflict being between a State and non-state actor. , and thus violations need to be governed by DOMESTIC LAW, despite the inadequacy of provisions to address issues associated with internal conflicts between States and non-state actors; a fact acknowledged in the Goldstone Report and cited by the LLRC.

Between the UNHRC, the Panel of Experts and the LLRC there are now 3 separate guidelines with the potential for 3 assessments of accountability. Of the 3, only two sets of guidelines, namely HUMAN RIGHTS LAW and HUMANITARIAN LAW have international recognition. With the completion of the Paranagama Commission there would be a total of 4 assessments of accountability. Given such a wide choice, selection of accountability assessment would be political. In order to avoid such a prospect, the Government of Sri Lanka with the support of India and other like minded States should bring to the attention of the General Assembly the current situation, followed by a Resolution in Geneva calling to abandon investigations by the Office of the High Commissioner for Human Rights.

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