| by Laksiri Fernando

( February 14, 2014, Sydney, Sri Lanka Guardian) 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?



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