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UNHRC initiated inquiry on Sri

Lanka
By Neville Ladduwahetty-July 14, 2014
It is reported that the infrastructure is in
place for the UNHRC-initiated International inquiry on Sri Lanka to coence operations!
However" the #ers of Reference$Reit for the conduct of the inquiry have not %een reported!
#his is unusual %ecause the accepted practice is that any inquiry should %e conducted within
stipulated paraeters set %y the reit to the inquirin& %ody!
In the a%sence of a foral reit to &uide the International inquiry on Sri Lanka it is likely that
this inquirin& %ody would use the resolution itself as the reit for the inquiry! In such an event
it is vital that resolution '$HRC$()$L!*$Rev!* titled +,rootin& reconciliation" accounta%ility
and huan ri&hts in Sri Lanka+ %e scrutini-ed to ascertain what provisions in the Resolution
could likely %e used as the reit for the inquiry!
' ,rea%le to a resolution &enerally sets the %ack&round that would for the %asis for the te.t
of the Resolution! #herefore" a ,rea%le should reflect the scope and content of the te.t itself!
#his preise akes it necessary for there to %e consistency %etween the prea%le and the te.t!
It is only then that the prea%le would %e esta%lishin& the conte.t for the te.t of the resolution
on which the Council decides to support" oppose or a%stain!
#he inconsistencies %etween prea%le and te.t in resolution '$HRC$()$L!*$Rev!* are
addressed %elow!
,R/'0BL/ of the UNHRC R/S1LU#I1N
'n ite in the prea%le states2 +Reaffirin& further that States ust ensure that any easure
taken to co%at terroris coplies with their o%li&ation under international law" in particular
international huan ri&hts law" international refu&ee law and international huanitarian law"
as applica%le+!
#his places o%li&ations for copliance with provisions of International Law only on the
le&itiate State and not on non-state actors involved in a conflict! #he distinction in the
particular case of Sri Lanka was that the conflict had reached the threshold of a Non-
international 'red Conflict there%y o%li&atin& %oth parties to the conflict!
#he Cease 3ire '&reeent 4C3'5 that %ecae effective in 3e%ruary (66( reco&ni-ed the
L##/ as a party to the conflict in Sri Lanka %ecause they possessed all the internationally
reco&ni-ed attri%utes of a re&ular ary with unifored Land" Naval and 'ir co%atants under
a coand and control structure" and territory reco&ni-ed as +L##/ controlled areas+ fro
which they carried out sustained terrorist attacks and ilitary operations! #herefore" %y
holdin& only the State 4Sri Lanka5 responsi%le" the prea%le fails to reco&ni-e the country-
specific nature of the conflict in Sri Lanka! #his oversi&ht has resulted in the prea%le
requirin& only the State of Sri Lanka to coply with international law o%li&ations" and not the
L##/!
However" while the prea%le holds 1NL7 the State responsi%le for conforance with
international law" para&raphs ( and *6 4%5 of the te.t hold %oth parties to the conflict
responsi%le for violations of international law!
#/8# of the UNHRC R/S1LU#I1N
,ara&raph ( of the te.t +9calls upon the :overnent of Sri Lanka to conduct an independent
and credi%le investi&ation into alle&ations of violations of international huan ri&hts law and
international huanitarian law as applica%le; to hold accounta%le those responsi%le for such
violations;9+!
,ara&raph *6 4%5 of the te.t states2 +#o undertake a coprehensive investi&ation into alle&ed
serious violations and a%uses of huan ri&hts and related cries %y %oth parties in Sri Lanka
durin& the period covered %y the Lessons Learnt and Reconciliation Coission9+!
Consequently" the tie frae has %een set as 3e%ruary (66( to 0ay (66<!
I0,LIC'#I1NS of =I33/R/NC/S in
the R/0I#S
#he contrast %etween the reit in para&raph ( and para&raph *6 4%5 is si&nificant! >hile
para&raph ( requires the :overnent of Sri Lanka is to evaluate violations coitted under
provisions of B1#H international huan ri&hts law and international huanitarian law"
para&raph *64%5 is e.pected to undertake +serious violations and a%uses+ 1NL7 of +huan
ri&hts and related cries %y %oth parties9!!+
's stated earlier" since the L##/ was reco&ni-ed as a party to the conflict under the
internationally arran&ed C3'" the conflict in Sri Lanka can ?ustifia%ly %e cate&ori-ed as a Non-
International 'red Conflict with all the o%li&ations and responsi%ilities that coe with such a
cate&ori-ation applyin& to all parties involved in the conflict! #herefore" investi&ations of
violations and a%uses %y %oth parties should %e under provisions 1NL7 of International
Huanitarian Law" and wherever applica%le International Huan Ri&hts law! %ut clearly N1#
under provisions of international Huan Ri&hts law alone! #his should %e the reit for the
International Investi&ation! #herefore" if the investi&ation is conducted in the conte.t of
Huan Ri&hts violations alone" it would %e seriously flawed!
Huan ri&hts are ri&hts enshrined in the Universal =eclaration of Huan Ri&hts! #he
=eclaration e%odies the ri&hts an individual could e.pect fro their :overnents!
:enerally" huan ri&hts are understood to re&ulate the relationship %etween the State and the
individual in the conte.t of ordinary life" i!e! at peacetie! #hey are the %asic ri&hts and
freedos to which all huan %ein&s are entitled; such as civil and political ri&hts" the ri&ht to
life and li%erty" freedo of thou&ht and speech$e.pression" equality %efore the law" social"
cultural and econoic ri&hts" the ri&ht to food" the ri&ht to work" and the ri&ht to education!
However" %ecause soe of these ri&hts are violated and others coproised durin& conflicts"
with violations varyin& with the intensity and scale of conflict" there are N1 esta%lished
%encharks" paraeters or standards of Huan Ri&hts to &uide an investi&ation into a%uses
that occur durin& a conflict!
In short" no Huan Ri&hts laws e.ist to &uide an investi&ation into violations and a%uses
durin& a Non-International 'red Conflict! #herefore" it is o%li&atory on the part of the
1HCHR and those en&a&ed in the inquiry to pu%lish the criteria they hope to use to identify
and specify the Huan Ri&hts applica%le when investi&atin& violations and a%uses durin& Sri
Lanka@s Non-International 'red Conflict!
=urin& a conflict however" it is International Huanitarian Law that &uides the relationship
%etween the State and individuals en&a&ed" and those who are neutral! If the conflict reaches
the threshold of a Non-International 'red Conflict" violations and a%uses that could occur
durin& such a conflict should %e investi&ated under provisions of 'dditional ,rotocol II of
*<AA" which specifically &overn Non-International 'red conflict! Since Sri Lanka@s conflict
had reached such a threshold" any investi&ations into violations should %e &uided %y Rules as
set out in the a%ove ,rotocol!
C1NCLUSI1N
#he entire investi&ation pertainin& to Sri Lanka set up the 1ffice of the Hi&h Coissioner
for Huan Ri&hts 41HCHR5 should %e re?ected on B counts2
*! #here are contradictions %etween the prea%le and the te.t! 3or instance" the prea%le
holds the State 4Sri Lanka5 responsi%le for violations under international law while the te.t
holds %oth parties 4Sri Lanka and the L##/5 responsi%le for violations of international law!
(! ,ara&raph *6 4%5 of the resolution calls on the 1HCHR to +undertake a coprehensive
investi&ation into alle&ed serious violations and a%uses of huan ri&hts and related cries %y
%oth parties in Sri Lanka9+! Since internationally reco&ni-ed Huan Ri&hts paraeters"
%encharks and standards do not e.ist to &uide an investi&ation" the panel appointed to
investi&ate would need to develop new &uidelines %efore any investi&ation could coence!
However" since such &uidelines do not have the approval of a reco&ni-ed authority" they will
have no le&itiacy!
B! Since the conflict in Sri Lanka had reached the threshold of a Non-International 'red
Conflict %y all accepta%le standards includin& that of the ,anel of /.perts appointed %y the UN
Secretary :eneral" the relevant %asis for investi&atin& any violations should %e International
Huanitarian Law and N1# Huan Ri&hts Law! #herefore" the criterion of Huan Ri&hts set
out in the resolution as the %asis for investi&ation is wron& and has no le&itiacy!
#he B issues cited a%ove are &rounds for re?ectin& the investi&ation! 3urtherore" this
resolution sets in place a precedent that would &rant the 1HCHR the ri&ht to investi&ate any
conflict in any country if the country concerned does not carry out a +credi%le and
coprehensive+ investi&ation to the +satisfaction of the UNHRC+!
#he 3orei&n 0inister of India is now reported to have infored Sri Lanka@s /.ternal 'ffairs
0inister that they are opposed to this resolution! In fact" India@s 3orei&n 0inistry
spokesperson" Syed 'k%aruddin has stated2 +>e feel that international %odies need to address
huan ri&hts concerns in a cooperative anner with the countries concerned and not in a
punitive anner+ 4=aily 0irror" Culy *(" (6*D5! In view of India@s opposition to the resolution"
Sri Lanka and India in association with other countries should ?ointly adopt easures to
prevent the ipleentation of this resolution %ecause the precedent set in place would have a
direct %earin& on the self interests of each and every one of the!