26 September, 2020

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‘Extensive Methodology’ Of The OHCHR And Other Tidbits

By Malinda Seneviratne –

Malinda Seneviratne

Malinda Seneviratne

Extensive Methodology of the OHCHR

Days after the announcement that Sri Lanka had decided to deny access to the UN investigation team, the Office of High Commissioner for Human Rights (OHCHR) said it had developed extensive methodologies to deal with situations where access had been denied. Wow! Now that’s refreshing. All these years all that the OHCHR did was regurgitate lies, damned lies and statistics tossed around by people who quote people who quote people who are utterly unreliable due to multiple reasons, framed of course by the policy preferences of the USA.

The monsters they spawn!

The Bodu Bala Sena is in a fix. Having done enough chest-thumbing, arms-throwing, spewing invective and inciting people to violence, the BBS is now forced to deal with the monster it helped create. There are BBS clones using the ‘BBS’ tag sprouting in various parts of the island. The BBS says ‘not us’. Well, that may be the case, but the rhetoric is word-for-word scripted from BBS (official) speeches. Now what, BBS?

Mangala’s kurundu-polu memory

UNP condemns Aluthgama violence, says Mangala Samaraweera. Mangala has gone on to ask ‘where was the government?’ i.e. when tensions were rising and eventually spilled into violence and mayhem. Legitimate condemnation. Legitimate question. Here’s another legitimate question, this one to Mangala: ‘Where was the government and where were you when some people picked up cinnamon clubs and set upon some people who were on a peaceful march?

Mechanism to prevent escalation of violence

In the aftermath of the flare up in Aluthgama and nearby areas, several Buddhist and Muslim religious leaders backed by politicians agreed to set up a mechanism to prevent further escalation of violence, officials have said. This is all good. It is a relief indeed to know that there are not only sane people around, they have the courage to come out and take a stand. But there’s another mechanism that can prevent violence, escalation included. The Police. It cannot be that the police are too dumb to identify possible flash-points. Why is the entire law-enforcement mechanism (which also has a ‘keeping the peace’ role) so impotent? Surely, things that can be nipped at the bud should be nipped at the bud?

Mainstream Media Vs Social Media

The mainstream media failed, champions of social media say. Social media exacerbated things because you can tweet to your heart’s content and not have to account for anything, those in the mainstream media say. Nalaka Gunawardena put it best: ‘irresponsible conduct in both (mainstream and social media)…our common challenge is to contain it while allowing freedom of expression.’ Good for the reader to exercise some grey cells too, to read and read through and to read and wonder about silences.

*Malinda Seneviratne is the Chief Editor of ‘The Nation’ and his articles can be found at www.malindawords.blogspot.com

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  • 1
    0

    Dear OTC,

    Welcome back. Apology accepted – you were rushed and probably didn’t have time to think things through. No issue.

    As regards your comments, however, I am afraid I am unable to agree with most of them.

    (a) What the Panel has stated does not call for agreement as it is printed
    If only things were so clear. Peoples’ readings of text differ. What may have been clearly stated for one may be obscure to another. You will recall our difference in opinion on the meaning of what was stated by the ICRC. Even when we say “X said this” it is our interpretation of what was said. Even a direct quote taken out of context may mean something else. Hence the necessity to agree on what was stated by the Panel. Whether the Panel’s view was correct or not is a separate matter (which you have now conceded).

    (b) Movement not required
    Again, you are going around in circles. We have taken the debate to the next level, my friend. The point, simply put, is this – International Treaty Law and International Customary Law have different rules with regard to the laws of war. The International Treaty Law has limited application to internal wars. Customary Law is obscure and has to be assessed by looking at State Practice. The ICRC study does that. Whether it is adequate or not is another matter, but at present it is the only large scale study of customary law on the laws of war.

    In terms of the report the practice of “most” States requires movement of civilians to the military targets. For something to be considered Customary Law it has to have virtually uniform and universal acceptance. The Panel has gone straight to the point and has stated that as a matter of customary law movement will be required. You cannot look at statements in the Treaty Law realm or those applicable to INTERNATIONAL armed conflicts and state that those are applicable to customary law and internal armed conflicts. To advance your case, please provide the reference in the ICRC report that deals with “internal armed conflicts” and “customary law”.

    So it DOES matter if the LTTE moved the targets or the civilians. The offences are distinct. The ingredients are distinct. The idea that the result is the same is a wrong yardstick. A person being killed in self-defence is different from premeditated murder. Premeditated murder is not an offence when it is a State-sanctioned execution after a trial. The result is the same – person is killed – but are they all offences? If you are going to call the Panel corrupt, at least try to show that IN LAW they are wrong. Don’t conflate your moral views with legality.

    (c) ICRC is not a law making body ICC is
    Technically speaking the ICC is NOT a law making body. Judicial decisions serve to interpret the law not make them. I would concede that judicial decisions do in effect shape the law and thus in a sense “make” it. But please be careful in spouting propositions. International Laws are technically made by States – through treaties and customs.

    (d)Who will prosecute and judge – ICC
    The ICC will judge (prosecution is done by the ICC Prosecutor) only if the matter is referred to it by the Security Council (SC) or it has the right under the ICC statute. There is no guarantee that the SC would refer the matter to the ICC – it may create a special tribunal – like the ICTY or the ICTR (see also the special courts in Sierra Leone, Lebanon, Cambodia and East Timor). The ICC is just one judicial body, albeit the permanent one. But it does not have universal jurisdiction.

    (e) What laws would the ICC follow?
    Interestingly you don’t answer this question. If you had taken the trouble to answer your own question you wouldn’t be having this debate. With regard to internal conflicts the laws the ICC will apply are set out in Article 8(2)(c) of the ICC Statute:

    8.(2)(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

    (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

    (iii) Taking of hostages;

    (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

    As you will see the using of Human Shields is not here. So the ICC would either not be able to proceed with a charge of using human shields or may have to rely on customary law. (I haven’t been able to research this matter to see if the ICC can apply customary law)

    (f) Why did the Panel refer to the ICRC Report
    The reason is simple it is the only report seriously setting out customary international law out there. The ICRC study as you rightly point out is not law. It is a study trying to show what the law is. The United States for instance doesn’t agree with many of the matters stated in the ICRC Report, and despite its characteristic arrogance, welcomed the ICRC’s study on a complex area (while pointing out flaws in the methodology). See http://webcache.googleusercontent.com/search?q=cache:cPn0p_fxjnIJ:www.icrc.org/eng/assets/files/other/irrc_866_bellinger.pdf+&cd=2&hl=en&ct=clnk&client=firefox-a

    The point is that it is a highly complex area, my friend. I have been studying it for a month now and still find it confusing. There is no clear and universal customary international law definition of the several war crimes. The Panel has gone with the best of the options out there. If the Panel had followed the ICC statute then it would not have been able to discuss the offence of human shields because that offence would not be applicable for internal armed conflicts as shown above. So, THE PANEL HAS TRIED ITS LEVEL BEST TO NAIL THE LTTE BY HAVING RECOURSE TO CUSTOMARY LAW. Yet you go around calling it corrupt! Why didn’t the panel simply say that there is no offence of using human shields in the ICC statute for internal armed conflicts? Why did it take the trouble of finding credible allegations against the LTTE for more serious offences? Come on, my friend, open your eyes. Don’t let government propaganda and misplaced patriotism blind you.

    (g) Inanimate objects

    Again, you misunderstand me. What I state is that the concluding sentence in the ICRC report refers only to Military Objectives, which is a defined term in the ICRC study. The questions that have to be answered are:
    (a) Is that the position in relation to Customary International Law?
    (b) Should that sentence in the ICRC report not be taken in isolation and looked at in conjunction with the other statements on Customary International Law?
    (c) Was the ICRC incorrect in its statement, given the customary international law that is there?

    These questions cannot be answered by us and a court would have to make a decision. Hopefully there will be a decision on this by an international tribunal sooner rather than later! My hunch is that in so far as INTERNAL ARMED CONFLICTS are concerned the statement may be correct as a matter of law (i.e. there may not be enough material out there that is virtually uniform and universally accepted to constitute customary international law.) Whether it is morally acceptable is another issue. In my personal opinion I think the offence of human shields SHOULD include animates as well. But I am well aware that my personal view is of no consequence and what matters is what the law states. In any event, even if the last sentence of the ICRC rule were to be taken as including animate objects, it uses the word co-location which includes movement of both.

    (h) Boring
    I guess there is some progress now that you are challenging the Panel’s decision to refer to the ICRC Report and challenging the validity of the ICRC rport. Earlier you were adamant that the Panel misrepresented the ICRC study. An interesting and subtle change of your line of attack. You are a worthy apprentice of Darth Insidious (Malinda) indeed! I gave you the US Govt link so that you can study up on this line if you like!

    On a serious note, my friend, consider reading the introduction to the ICRC report on internal and international armed conflicts first. Then read the ICC statute and see how different the offences are. Thereafter re-read the ICRC Rule 97. Then read the Panel’s recommendations. You were giving good references and doing good research earlier, but you have stopped doing that now and have become argumentative. That doesn’t help either of us.

    Peace,

    Sulaiman

    • 0
      1

      Dear Sulaiman,

      You wrote “In terms of the report the practice of “most” States requires movement of civilians to the military targets”.

      Targets can be movable or immovable. Civilian movement is obviously required if the targets that are meant to be protected are immovable but that is not the case if the target itself is movable.

      Please list the “Most” States that believe locating civilians together with movable military targets can be achieved only by moving the Civilians and not by moving the targets towards the civilians.

      Referring to Article 8(2)(c) of the ICC Statute you say ….. “As you will see the using of Human Shields is not here. So the ICC would either not be able to proceed with a charge of using human shields or may have to rely on customary law. (I haven’t been able to research this matter to see if the ICC can apply customary law) “

      That’s an interesting interpretation of Laws specifically made to protect non combatants! A human life in a local armed conflict appears to have a lesser value than a human life in an International conflict!

      You are free to make such an interpretation but those who are obligated to protect non combatants cannot do so without jeopardizing their declared objective. According to you there is a very serious loophole in the Laws that attempts to prevent the use of Humans as a Shield to protect military targets. The law exists if the conflict is International and vanishes if the conflict is Local!!!
      Very strange indeed.

      The LTTE located legitimate military targets amongst civilians even in the NFZs. Pictures from foreign sources abound to prove that. Yet your contention and that of the corrupt Darusman panel is that the Humans in such a predicament are not protected by the ICC’s prohibition of using Humans Shields. The Panel says there is no evidence of the movement of civilians to the military targets even though the FINAL result is that humans are used as a shield for the military targets.

      BTW Your link does not work.

      The Darusman trio states the following in their report

      237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)

      Civilians moved to the NFZ
      Military targets moved to the NFZ along with civilians to become immune from attacks.
      Is that a Human Shield?

      No says Darusman.
      ICC contradicts Darusman and say it is a crime.
      Perhaps Darusman and co did not understand the word “PRESENCE”.
      You on the other hand say that the law does not apply to a local armed conflict and exists only for International conflicts!

      The ICC Statute says “(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;”

      Darusman has jettisoned the ICC Rule (the Law making body) and tries to take refuge behind the ICRC (the Red Cross) that has no standing in law. You say the ICC law does not apply as the conflict is not International but local. Yet a decade after discovering this purported loophole there is no attempt by the UN or the ICC to close that loophole. Why?

      Does the ICC and the UN think that non combatants in an internal armed conflict are not in need of the protection afforded to those in an International conflict?
      Are non combatants in an internal conflict expendable?
      Or is it because there is no loop hole to plug?

      I was very busy the last few months as I had a very busy travel schedule and had no time to spare.

      Wish you a happy, prosperous and peaceful 2015.

      Kind Regards,
      OTC

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