By Laksiri Fernando –
Dr. Laksiri Fernando
Neville Ladduwahetty has written an interesting but controversial article to The Island newspaper (11 February 2014) titled “Accountability in non-international armed conflicts.” His title expresses his view on the character of the conflict but not the conclusion. It is more interesting to note his conclusion which he begins by saying,
“The belief among many is that a national inquiry with focus on accountability would be in the best interest of Sri Lanka. I too was of that view. But on deeper reflection the complexities and impracticalities involved in such an exercise makes it counterproductive to reconciliation which should be the final goal if internal conflicts are not to recur.”
Does this mean that he now agrees for an international inquiry? Obviously not. He has strongly argued that at the conclusion of a non-international armed conflict, whether by peace agreement (i.e. South Africa) or by defeating one party by the other (Sri Lanka), it is best not to investigate the accountability at all as it would be counterproductive to ‘reconciliation’ as he interprets. According to him what the government now should do is the following.
Sri Lanka’s position in Geneva should be that although Sri Lanka has every right for its actions to be judged by provisions of International Humanitarian Law, as a responsible Government it performed functions and adopted military strategies that were well over and above those required by Rules of War for the primary purpose and long-term goals of post-conflict reconciliation. This should precede the Progress Report on the Action Plan. Presenting the progress on the Action Plan WITHOUT FIRST PRESENTING IT IN THE LEGAL CONTEXT would deny Sri Lanka the opportunity to take a dignified stand without having to plead its case.
He does not completely deny that ‘Sri Lanka has every responsibility (although he says right) for its actions to be judged by provisions of International Humanitarian Law.’ What should be added here is also ‘international human rights law.’ But instead of ‘having to plead its case,’ according to him, Sri Lanka should ‘take a dignified stand’ or assert in Geneva saying that “as a responsible Government it performed functions and adopted military strategies that were well over and above those required by Rules of War.”
There is nothing wrong in asserting innocence, and it is like ‘pleading not guilty.’ But the question is how those assertions can be verified in the rule of (international) law. His proposition leaves open for the UNHRC to propose an international investigation, if the required votes are garnered, without Sri Lanka objecting or proposing an alternative.
Character of the Conflict
It is interesting to investigate how he has come to this conclusion. First, he has opened up a new debate on the character of the armed conflict and concludes that it was not a ‘war on terror’ but a ‘non-international armed conflict.’ In this venture he has agreed more with the Panel of Experts appointed by the UN Secretary General than the LLRC appointed by the President of Sri Lanka as follows.
While the Panel of Experts took the position that the Government and the LTTE should be equally held responsible for conformance to International Humanitarian Law the Government’s appointed LLRC adopted a different approach. The premise of the LLRC was that the Government of Sri Lanka waged an Armed Conflict against a terrorist group that does not accept International Humanitarian Law and are not bound by its norms. The consequence of this premise is to require the Government of Sri Lanka and the Security Forces to act by higher standards than the LTTE. This contradicts the principle of the ICRC that parties to a Non-International Armed Conflict are EQUALLY responsible. The position taken by the LLRC makes Sri Lanka vulnerable to charges of accountability, and not the LTTE.
Mr Ladduwahetty has sufficiently substantiated his claim about the approach of the Panel of Experts by giving an adequate quotation, but not about the approach of the LLRC. Incidentally, the Expert Report is something that the Sri Lankan Government has vehemently rejected and the LLRC Report is the only thing that they show to the world to claim that the government is for a genuine reconciliation with the Tamil community. If the LLRC has in any manner indicated that the Government of Sri Lanka has had ‘to act by higher standards than the LTTE’ (which I have not noticed), that must have been based on the government’s own assertion that it was waging a ‘war against terrorism’ or a ‘humanitarian operation’ to rescue the civilians. Anyway, shouldn’t the governments be more responsible than the terrorists?
In should be reminded that when the UNHRC adopted the last resolution in March 2013 on “Promoting Reconciliation and Accountability in Sri Lanka,” it specifically mentioned that “States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable.”
There is no doubt that the character of the Sri Lankan conflict is a complicated one. It undoubtedly started as a ‘non-international or internal armed conflict’ but evolved or transformed into a ‘combat or operation against terrorism’ especially after the LTTE closed the sluice gates of Mavil Aru in July 2006. That was a turning point in the internal armed conflict. That was also the sole justification for the military thrust thereafter. If it were a mere continuation of an internal armed conflict, the military power that was used by the State was completely unwarranted and disproportionate. After characterizing its military thrust as a ‘combat against terrorism,’ now to call it a mere internal conflict where different rules may apply or could be advocated is like calling a ‘water monitor’(Kabaragoya) a ‘land monitor’ (Thalagoya) when one wants to eat it.
What are the new post-war or post-conflict rules advocated by Ladduwahetty for an ‘internal or non-international armed conflict? His advocacy is not only for Sri Lanka but for any country.
Proposed New Rules?
His proposed new defence of Sri Lanka is based on the priority given to ‘Reconciliation.’ The priority given to ‘reconciliation’ is a very welcome initiative. However, if the LLRC Report is fundamentally flawed, as he says, no one would believe that Sri Lanka is giving priority to reconciliation. At the same time, Sri Lanka may have to answer why it adopted a strong military thrust (2006-2009) where a political approach would have been better in an internal armed conflict. In such a situation, the gravity of war crimes looms larger on the part of the State and not diminishes. His (new) characterization of ‘non-international armed conflict’ justifies the approaches adopted by CBK and RW but not MR. He further says,
Conflicts between States invariably end in winners and losers or in a truce. Reconciliation is not a priority. This is not the case with internal conflicts whatever their nature. The final and primary objective is reconciliation if the conflict is not to recur. Furthermore, the root cause of internal conflicts, as in the case of Sri Lanka, is invariably political. Under the circumstances, inquiries would bring into focus the actions adopted by the heroes of the parties engaged in the conflict.
In this background holding an inquiry would result in exposing the actions of their respective heroes. Such an exercise would not only polarize the communities but would also definitely hamper attempts at reconciliation.
There is no question that investigations into past actions of conflicting parties would bring some displeasure or resentment from those who supported them (as heroes) rather blindly. However, whether those inquiries would polarize the communities would largely depend on the way the inquiries are conducted and mostly the way the reconciliation process is pursued. There should be a strong educational and awareness component to counter any fallout. I do emphasise the importance of this educational factor in reconciliation. This is not at all contemplated in Sri Lanka. What is happening through the government controlled media and other propaganda is completely the opposite.
Conclusion
It is good that Ladduwahetty has identified the root cause of the Sri Lankan conflict as political. He has done that even before. He has even gone further to somewhat ‘declassify’ the LTTE as a terrorist organization and to say “What needs to be appreciated is that terrorism is a tactic used by dissident groups (such as the LTTE) who challenge the writ of legitimate Governments.” The fact of the matter is Sri Lanka has not yet conducted any inquiries into allegations of crimes or violations. But the communities are again polarized perhaps due to the absence of them or particularly due to other political reasons. Political reasons to the conflict still remain not only unaddressed but to a great extend exacerbated.
What I might completely disagree with him is the following. Ladduwahetty has discounted of having even a Truth and Reconciliation Commission (TRC) for Sri Lanka. To that effect, he has quoted a statement by Bishop Desmond Tutu, “commenting on the limitations of the process.” I am not requoting it here for any analysis, to be concise in this article. The limitations of a process however cannot be a reason to dismiss the process or the validity therein. Limitations can overcome. Tutu has always highlighted the importance of the process for reconciliation for South Africa and elsewhere.
However, reconciliation in Sri Lanka needs something more in addition to a TRC. That is a proper and an independent inquiry into accountability issues or alleged war crimes. Unlike in South Africa, the conflict in Sri Lanka ended in a brutal war between the two parties in the midst of a large number of civilians and all indications are that both parties indulged in atrocities. Whatever the facts, those need to be properly investigated, if such a war or atrocities are not to occur again in the country. How many mass graveyards are we going to uncover in the future otherwise?
Rajash / February 14, 2014
non-international internal conflict?
Lajshman kadirgamar went around the world and sayin LTTE is an international terrorist organisation, They killed Rajiv Gandhis, they are linked to other terrorist organisations in the world.
Sri Lanka enlisted mercenaries, military perosnnel etc form China, Pakistan, India, UK, USA. Iran to fight LTTE in the battle fields and/or to give startegic advice form the battle field
Sri Lanka shamelessly and openly bought arms and hardware and amuunition from China, Pakistan, India, UK, USA. Iran
during the height of the war Sri Lanka boasted that every hour shisps loads of arms and amuunition is leaving Pakistan to fight the LTTE
now you say this is an non international internal ware fare
you guys are running out of ammunition
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Rationalist / February 14, 2014
Rajash:-
Are you implying that the Terrorist Organisation, the Liberation Tigers of Tamil Eelam were manufacturing their own Armaments?
That means that the LTTE did not buy Arms, from the countries that you have listed as selling Arms to the GOSL!
e.g.
“Sri Lanka shamelessly and openly bought arms and hardware and amuunition from China, Pakistan, India, UK, USA. Iran”
What is sauce for the Goose is Sauce for the Gander, Rajash!
-Rationalist
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Rajash / February 14, 2014
LTTE got thier arms from the Sri Lankan military, when the Sri Lankan military abandon and run for thier life.
Well my point is that Sri Lanka lobbied all over the world to enlist LTTE as an international terroris organisation. The rogue so Rohan Gunaratne has linked LTTE to almot every terrorist organisation in the world with his imaginative ideas.
Now why the turnaround?
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Thiru / February 14, 2014
Almost all the Sinhala writers are cowards, they cannot accept the truth which is so bitter to them.
Sri Lankan state committed genocide of Tamils.
Truth will out itself on the judgement day.
Thank God, we don’t have to depend upon the phony judges of Sri Lanka.
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Thiru / February 15, 2014
What accountability are we talking about?
I understand that the latest Channel 4 movie on unbelievable, but true, cruel and ghastly Sri Lankan genocide scenes of Tamils (taken by Sri Lankan soldiers) during the war is coming soon.
Let it tear the masks of the embedded writers and analysts propping up the genocidal regime and its henchmen.
These are the barbarians and the state the writers want Tamils to reconcile with!
Better to perish than living under the jack boots of these barbarians.
This movie must be shown in Geneva in March 2014.
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justice / February 14, 2014
It has been four years already & now sri lanka wants another TEN years to “reconcile” and “account for” !!!
GLP wants more “Time and Space” !!!!
Do they think that all other nations are fools?
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Rajash / February 14, 2014
Declassify LTTE as a terrorist organisation
I can see where he is coming from now that Karuna and KP are with Gota
But Gota says in the promotional video Reconciliation and Rebuilding crap that he needs to maintain 150,000 soldiers in the NE because that all LTTE carders are still not deradicalised
So if they are not deradicalised how can you reclassify
Any how this is an interesting development
Soon some one from the sinhala establishment will say in fact the Sinhalese were the internal terrorist
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Navin / February 14, 2014
He has even gone further to somewhat ‘declassify’ the LTTE as a terrorist organization and to say “What needs to be appreciated is that terrorism is a tactic used by dissident groups (such as the LTTE) who challenge the writ of legitimate Governments.”
—
A brain fart.
Why is it that during LTTE attacks many innocent monks, children, commuters, bystanders and devotes had to die and these literates, human rights activists and supposedly erudite writers who justify and declassify LTTE today survived?
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Safa / February 14, 2014
If Neville Ladduwahetty says that there is no need for justice or accountability he is sadly out of date and living in the past, before the time of Hitler and the Holocaust. The UN and UN Charter came into existence exactly due to such massacres and denial of Human Rights during the two World Wars. It was the resolve of the International Community that Never Again should such events be allowed to happen.
Notwithstanding the UN and UN Charter, conflicts and denial of Human Rights is rampant even today. Hence there is a continuous effort to address such problems. It is the prerogative of the victims to demand Justice and the Govt and International Community to deliver, not for idle bystanders like Neville Ladduwahetty to forestall. If his own mother was murdered or his son abducted would he sing the same song?
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aratai / February 14, 2014
.
There is something definitely wrong with Srilankan military.
In 1971, SL military killed over 10,000 innocent Sinhalese while fighting JVP.
In 1989, they killed over 20,000 Sinhalese again when fighting with JVP.
In 2009, they killed over 40,000 Tamils when fighting against LTTE.
Here we see a pattern…..SL army is good at killing its own citizens when fighting against its own rebels.
:-)
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Meh / February 14, 2014
Re: ‘Whatever the facts, those need to be properly investigated, if such a war or atrocities are not to occur again in the country’
I think the issue is who can undertake a ‘proper’ investigation. There is no way the Sri Lankan Government can conduct an accurate, unbiased investigation. I also doubt the international community can, as they are driven by various vested interests of their own. The ‘facts’ surrounding the conduct of various other international bodies, such as the supply of weapons to both sides, turning a blind eye to the illegal activities of diaspora communities, and the roles of NGOs in sustaining conflict, will all form a significant part of the ‘truth’ that will be needed to achieve the understanding necessary to avoid another atrocity such as this.
I however note, if a genuinely ‘proper’ investigation was to be undertaken, that would consider all dimensions and contributions to this conflict, it will not only go a long way towards avoiding the possibility of an atrocity of this nature again in Sri Lanka, but also the rest of the world.
As things are now, an ‘independent’ inquiry is only likely to find flaws with the conduct of various GoSLs, and also the Tiger movement. Few individuals will be held accountable from the GoSL side, except perhaps some of the current ruling personnel, and recent military personnel. No one will be held accountable from the Tiger side. Of course all atrocities carried out by the Tigers over the past 30 years were conducted single headedly by one man, and that man is now conveniently dead (the diaspora who sustained and funded his activities, and to this day openly supports his acts, are merely misguided victims). No one else played a role in this war. So the US will continue to do things the way they do things, as they have nothing to be accountable for, or learn. So will India, China, The UK, France, Switzerland, Germany, Israel, Russia etc. So will the UN, HRW, RC, and various other NGOs.
In practice, such a result will just maintain a status quo of the survival of the fittest. What happened in Sri Lanka is in no way unique. Human history shows atrocities of this nature are unlikely to ever be eliminated, until mankind itself is extinct. After all, enough such atrocities have occurred previously, for us to have learnt from, if we as a species were ever going to learn. The most intelligent and conscious of species on earth, we still live like primitive animals, just as nature intended us to.
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Lokka / February 14, 2014
Whether a conflict is an international armed conflict or an internal armed conflict depends on the circumstances surrounding the conflict. It does not depend on the interpretation given to it by the belligerents. As a categorical imperative, each and every party to a conflict, whether international or internal, must conduct all hostile activities in accordance with the rules of humanitarian law. The fact that the conflict was between a legitimately elected government and a terrorist group does not change the situation. Moreover, according to the principles of international humanitarian law the causes of an armed conflict, or what gave rise to the armed conflict do not justify the way how the hostilities were conducted. Also,the fact that one party has resorted to terrorist acts does not, for example, justify the use of disproportionate or excessive force even in the context of self-defense.
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kali / February 14, 2014
Dr.Fernando:
What we need in Sri Lanka is some bold decisions by the Majority to have any meaningful outcome to the 64 year old conflict which has taken a heavy toll and sadly that is lacking. Since independence as the Majority you had the power in your hand but that has been misused and it is no point blaming the victims for the Countries ills.
Accountability is a Pre Requisite to Reconciliation and one follows the other.
1) “The belief among many is that a national inquiry with focus on accountability would be in the best interest of Sri Lanka. I too was of that view. But on deeper reflection the complexities and impracticalities involved in such an exercise makes it counterproductive to reconciliation which should be the final goal if internal conflicts are not to recur.”
If I read you correctly I agree that a National Inquiry will not meet the litmus test as as an accused you cannot be the Judge and Jury.
2) Does this mean that he now agrees for an international inquiry? Obviously not. He has strongly argued that at the conclusion of a non-international armed conflict, whether by peace agreement (i.e. South Africa) or by defeating one party by the other (Sri Lanka), it is best not to investigate the accountability at all as it would be counterproductive to ‘reconciliation’ as he interprets. According to him what the government now should do is the following.
*** I think I spoke too soon and we are back to square one. What he is saying is that let us forget the Crime however serious the Crime is and let us concentrate on rehabilitating the criminal as any attempt to punish the Criminal might be counter productive ie he might strike again. This is what the GOSL spokesman Mr.Weerantunga said in the USA. He said that any attempt to have a War Crimes Inquiry might start race riots at Home.
3) Sri Lanka’s position in Geneva should be that although Sri Lanka has every right for its actions to be judged by provisions of International Humanitarian Law, as a responsible Government it performed functions and adopted military strategies that were well over and above those required by Rules of War for the primary purpose and long-term goals of post-conflict reconciliation. This should precede the Progress Report on the Action Plan. Presenting the progress on the Action Plan WITHOUT FIRST PRESENTING IT IN THE LEGAL CONTEXT would deny Sri Lanka the opportunity to take a dignified stand without having to plead its case.
*** The above doesn’t make any sense and the writer is confused. But I will comment as follows. ” Rules of war Requires ” the military to make sure that the Civilians are not deliberately harmed. But by all account the Sri Lankan Military miserably failed by creating designated safe heavens and asking Civilians to Move into this areas and deliberately shelling causing carnage which is well documented. Only an International Inquiry can establish what happened not an internal inquiry.
4) There is nothing wrong in asserting innocence, and it is like ‘pleading not guilty.’ But the question is how those assertions can be verified in the rule of (international) law. His proposition leaves open for the UNHRC to propose an international investigation, if the required votes are garnered, without Sri Lanka objecting or proposing an alternative.
Please help me with this. How do you reconcile 2 & 4 they are world apart.
Character of the Conflict
It is interesting to investigate how he has come to this conclusion. First, he has opened up a new debate on the character of the armed conflict and concludes that it was not a ‘war on terror’ but a ‘non-international armed conflict.’ In this venture he has agreed more with the Panel of Experts appointed by the UN Secretary General than the LLRC appointed by the President of Sri Lanka as follows.
*** If he accepts that it was not a war on Terror how do you then justify the mass killings and what were the causes of the armed conflict.
5) While the Panel of Experts took the position that the Government and the LTTE should be equally held responsible for conformance to International Humanitarian Law the Government’s appointed LLRC adopted a different approach.
*** Here the GOSL have a problem how can they point the finger at LTTE when they have embraced Karuna with open arms. He should have been prosecuted and making him a minister makes a mockery of Governance.
Proposed New Rules?
His proposed new defence of Sri Lanka is based on the priority given to ‘Reconciliation.’
*** Sadly the writer is trying to have the cake and eat it and it is Understandable that he wishes to bypass Accountability. But for us Tamils we cannot move on until those who are responsible for this terrible crime have either been exonerated or punished.
6) In this background holding an inquiry would result in exposing the actions of their respective heroes. Such an exercise would not only polarize the communities but would also definitely hamper attempts at reconciliation.
*** I totally disagree with the above and that would simply give a Green Light to a repetition in the future.
Conclusion
However, reconciliation in Sri Lanka needs something more in addition to a TRC. That is a proper and an independent inquiry into accountability issues or alleged war crimes. Unlike in South Africa, the conflict in Sri Lanka ended in a brutal war between the two parties in the midst of a large number of civilians and all indications are that both parties indulged in atrocities. Whatever the facts, those need to be properly investigated, if such a war or atrocities are not to occur again in the country. How many mass graveyards are we going to uncover in the future otherwise?
*** I agree with the above entirely.
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crazyoldmansl / February 14, 2014
Thats a good one. The mass graveyards of the future. I agree that there are going to be MANY MANY MANY MORE!.
I think that successive governments of Sri Lanka have had too many terrorists in them and as a result followed strategies of terror where they attempted to silence and suppress certain political tendencies using various methods including torture, rape and then outright war. These governments also suppressed tendencies that disagreed with their strategies of terror and wished instead to generate a democratic context and this is still going on.
This situation will continue until it is free for anyone to advocate separatism and work towards such separatism within a democratic framework. Those who do not like governments that suppress certain political initiatives and governments that foster impunity and subvert the independence of the judiciary, may want separate state of their own and people who do not like being governed by thugs and goons may want their own state as well. Certainly those who do not like fascism will want their own democratic state. Anyone wanting an united state or an unitary one will have to find a way to accomodate and balance all these interests.
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K .Anaga / February 15, 2014
The basic problem was created by various governments.If the matter was sorted out at the early stages the need for LTTE would not have arisen. Even at the late stages when a peace agreement was reached under ISGA (Internal Self Governing Authority) the peace was shattered by the government which followed. Further the government with the support of the world fought the LTTE. Not only the LTTE but even the civilians and innocent people. Even after the so called victory over the LTTE no efforts were made to solve the problems. This clear indication of the arrogance of the government. Unfortunately Government insist on giving ‘something’ and not sharing power. For argument sake the people killed by LTTE over the years cannot match the number of innocent civilians killed in the last two years of the war. What is Terrorism? If you bomb by bringing the bombs by lorries and land vehicles it i is a terrorist activity but when you bomb from the air it is Nationalism?
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