Relevance of international laws in Geneva

process
By Neville Ladduwahetty-November 19,
2015, 7:36 pm
Dr. Udugama
addressing the media recently
Evidence of derogation of Human Rights
prevails in most countries because of
threats from terrorism. For instance, the
introduction of the Patriot Act of the US
following the 2001 terrorist attack in
New York curtails many civil liberties
through invasive surveillance by the NSA. With the recent terrorist attack
in Paris, security measures are bound to be strengthened in many
countries resulting in the derogation of Human Rights. Attempts to
dismantle Sri Lankas PTA appear foolish in a background where there is a
global need to be extra vigilant about threats from multi-dimensional
sources. The derogation of Human Rights varies and reaches a minimum the "Hard Core" of Human Rights during an Armed Conflict.
In the course of a media briefing Dr. Udagama, the present Chairperson of
the Human Rights Commission, has indicated that "the HRC intends to play
a pivotal role in shaping the state policy" (The Island of Nov. 17). The
Island report further says: "Commenting on the Geneva process,
reconciliation and transnational justice, Dr. Udagama asserted that the
entire process should be based on human rights law".
The UNHRCs OISL report, the UNSGs Panel of Experts report (Darusman
report) and the Paranagama report all have categorised the conflict in Sri
Lanka as a Non-International Armed Conflict. Consequently, the applicable
law is International Humanitarian Law (IHL) and NOT International Human
Rights Law (IHRL), because IHL governs the conduct of parties to a NonInternational Armed Conflict.
This fact is unequivocally stated in Article 1 (1) of the Protocol Additional

to the Geneva Convention of 12 August 1949, and relating to the

Protection of Victims of Non-International Armed Conflict (Protocol II), 8
June 1977.
RELEVANCE OF IHL
Article 1 (1) states: "This Protocol, which develops and supplements Article
3 common to the Geneva Conventions of 12 August 1949 shall apply to
all armed conflicts which take place in the territory of a High Contracting
Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained
and concerted military operations".
Article 1 (2) states: "This Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature as not being armed conflicts".
Paragraph 182 of the UNHRCs OISL 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"
Paragraph 291 of the Paragama Commission report states: "In the view of
the Commission the conflict between the SLA (Sri Lankan Army) and the
LTTE was a non-international armed conflict governed by the body of IHL
applicable to such conflicts".
The Sri Lanka HRC needs to appreciate that while the conflict between the
Government of Sri Lanka and the LTTE had reached the threshold of a NonInternational Armed Conflict and therefore IHL applies, the acts of violence
associated with the JVP had not reached such a threshold. Therefore, in
the case of violence associated with the JVP the applicable law is Human
Rights Law. The inability to appreciate the distinctions between
Humanitarian Law and Human Rights Law and the circumstances for their
applicability has plagued Sri Lanka ever since it had to address
accountability related issues and unfortunately that confusion continues to
this day.
The question is whether the primary objective of the Security Forces was
to militarily defeat the LTTE or whether to save the civilians taken hostage
by the LTTE. If militarily defeating the LTTE was the primary objective
separating the civilians from the clutches of the LTTE becomes part of
military strategy. On the other hand, the alternative of saving the civilians

as the primary goal and defeating the LTTE as a secondary goal was not a
viable option because of the refusal of the LTTE to surrender or seek
sanctuary elsewhere. With such a determination by the LTTE the civilians
could NOT be saved without military defeating the LTTE. These
circumstances underscore the applicability of Humanitarian Law throughout
the conflict and thereafter in post-conflict operations relating to
combatants and non-combatants.
INTERNATIONAL HUMAN RIGHTS LAW
Human Rights on the other hand are essentially international rules initiated
and established by the UN, whereby individuals and groups can expect
and/or claim certain entitlements from their Governments. Numerous nontreaty based principles and guidelines form part of "soft law" of Human
Rights (ICRC, Advisory Service). The main treaty sources of Human Rights
are the UN Declaration on Human Rights, International Covenant on Civil
and Political Rights and on Economic and Social and Cultural Rights as well
as a host of other Conventions. Both "soft laws" and treaty laws of Human
Rights apply mostly during times of Peace. However, a degree of
derogation of Human Rights and Civil Liberties are recognized as necessary
depending on the extent of threats to the security of a State. However,
certain Human Rights are not derogated under any circumstances. They
are identified as the "Hard Core" of Human Rights Law. These are the right
to life, prohibition of torture or cruel, inhuman or degrading treatment or
punishment, prohibition of slavery and servitude and the prohibition of
retroactive criminal laws (Ibid).
Evidence of derogation of Human Rights prevails in most countries because
of threats from terrorism. For instance, the introduction of the Patriot Act
of the US following the 2001 terrorist attack in New York curtails many civil
liberties through invasive surveillance by the NSA. With the recent terrorist
attack in Paris, security measures are bound to be strengthened in many
countries resulting in the derogation of Human Rights. Attempts to
dismantle Sri Lankas PTA appear foolish in a background where there is a
global need to be extra vigilant about threats from multi-dimensional
sources. The derogation of Human Rights varies and reaches a minimum the "Hard Core" of Human Rights during an Armed Conflict.
CONCLUSION
Despite this body of legal opinion from international experts, Dr. Udagama
has commented that "the entire process should be based on human rights
law", which amounts to a total rejection of the body of recognized

international collective opinions. The comment attributed to Dr. Udagama

could therefore either be due to misreport in The Island, or the current Sri
Lanka HRC and Dr. Udagama have collectively decided to revisit the facts
and circumstances associated with the conflict and concluded on taking a
radically different interpretation namely, that the conflict in Sri Lanka was
NOT an Armed Conflict. The motivation for such a dramatically different
interpretation could be driven by the compulsion of the Sri Lanka HRC "to
play a pivotal role in shaping state policy".
If The Island report is correct, the Sri Lanka HRC has concluded that that
the conflict was NOT an Armed Conflict as defined by Protocol 3. The
impact on Sri Lanka as a result of the position taken by the Sri Lanka HRC
would be to categorize acts such as No-Fire Zones, Shelling of hospitals,
shortfalls in delivery of food, medicine and other humanitarian aid to the
civilians and post-conflict treatment of combatants and non-combatants as
Human Rights violations, whereas all of them could be explained and found
acceptable under provisions of International Humanitarian Law applicable
to Non-International Armed Conflict. Therefore, without arbitrarily
declaring that the Geneva process should be based on Human Rights Law,
the task for Dr. Udagama and the HRC is to first establish grounds for
rejecting the UNHRCs categorization that the conflict in Sri Lanka was a
Non-International Armed Conflict.
Posted by Thavam