INTERNATIONAL LAWS in ARMED CONFLICT 

By Neville Ladduwahetty-January 26, 2017, 9:47 pm 

During the course of an e-mail exchange, the question as to which Laws should guide issues relating to Sri Lanka’s Armed Conflict became a contentious topic. The opinion of some was that International Human Rights Laws (IHRL) and International Humanitarian Laws (IHL) should operate concurrently while others were of the opinion that International Humanitarian Law should operate separately. Since International Humanitarian Law is triggered ONLY during an Armed Conflict it is necessary to first establish whether the conflict in Sri Lanka had reached the threshold of an Armed Conflict.

SRI LANKA’S CONFLICT: ARMED CONFLICT or NOT?

The two undisputed authorities cited as to what constitutes an Armed Conflict are: (1) The International Criminal Tribunal for former Yugoslavia (ICTY, 1995) appointed by the Security Council and (2) the ICRC, internationally acknowledged as the accredited agency for IHL

During the Prosecutor v. Dusko Tadic trial the ICTY stated: "...we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State.  International humanitarian law applies from the initiation of such armed conflicts and EXTENDS (emphasis added) beyond the cessation of hostilities until a general conclusion of peace is reached; or in the case of internal conflicts, a peaceful settlement is achieved.  Until that moment, international humanitarian law continues to apply in the WHOLE TERRITORY (emphasis added) of the warring State or, in the case of internal conflicts, the WHOLE TERRITORY (emphasis added) under the control of the party, whether or not actual combat takes place there". 

Part 1, Article 1 (1) of the " Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 states:

"This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 shall apply to all 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 the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol".

Therefore, it could be justifiably concluded that the conflict in Sri Lanka was in fact an Armed Conflict; a fact also acknowledged by the UNSG appointed Panel of Experts and in the OISL report of the UNHRC.

CURRENT OPINION

An official publication titled "INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT" by the United Nations Human Rights, Office of the High Commissioner, New York and Geneva, 2011 states:

"Two arguments have specifically been raised against their concurrent application. Firstly, it has been argued that international human rights law and international humanitarian law are regimes that apply in separate contexts – namely the former in peace time only and the latter in armed conflict – and that concurrent or complementary application is therefore, irrelevant. Second, it has also been argued that if both bodies of law are applicable in situations of armed conflict, then the question is whether one body of law would have pre-eminence over the other as a matter of lex specialis" (p.54).

Continuing the UN document states:

"A number of decisions by human rights and judicial organs have concluded that international human rights law applies at all times, irrespective of whether there is peace or an armed conflict. Meanwhile, international humanitarian law specifically applies only to situations of armed conflict. Thus, in an armed conflict, international human rights law is applicable concurrently with international humanitarian law. For example, the International Court of Justice has clearly stated that "the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency" (p. 55).

CONDITIONS for CONCURRENT

APPLICATION of IHRL and IHL

The notion that International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are applicable concurrently during an armed conflict is widespread.  However, this could be misleading because it could be misinterpreted that the full scope of IHRL that applies at peace time is applicable along with IHL during an armed conflict.  Since the UN opinion cited above acknowledges that certain provisions could justifiably be derogated provided certain provisions of Article 4 of the Covenant are retained, means that the notion that the full scope of IHRL that is applicable during peace time also applies during an Armed Conflict (as in Sri Lanka), is flawed. Thus, for IHRL and IHL to apply concurrently it is absolutely necessary for human rights to be derogated to the limits stated in Article 4 (2) of the Covenant. However, since these provisions, identified as the "hard core human rights", are incorporated in provisions of Additional Protocol II of 1977, the concurrent inclusion of IHRL with IHL when addressing issues of accountability should be avoided since it could lead to confusion.

The derogation of IHRL during Sri Lanka’s Armed Conflict is justified because Sri Lanka’s Emergency Regulations were in operation during and after the conflict and furthermore, Article 15 (7) of the Constitution permits the restriction of several fundamental rights in the interest of national security. Even though the provisions of Article 4 of the Covenant are strictly not applicable to Sri Lanka since they have not been incorporated into domestic law, the fact that Additional Protocol II of 1977 incorporates the provisions in Article 4 of the Covenant that cannot be derogated, the applicability of IHL as provided in Additional Protocol II is justified since it is part of Customary Law. Thus, addressing accountability on the basis of Protocol II of 1977 provisions of IHL is valid.

Addressing the issue of "hard core of human rights" following derogation of IHRL in general, an ICRC publication of October 2002 titled "International humanitarian law: answers to your questions." states:

"The International human rights instruments contain clauses that authorize States confronted with serious threats to suspend the rights enshrined in them.  An exception is made for certain fundamental rights laid down in each treaty, which must be respected in all circumstances and may never be waived regardless of the treaty.  In particular, these include the right to life, the prohibition of torture and human punishment or treatment, slavery and servitude, and the principle of legality and non-retroactivity of the law.  These fundamental rights that States are bound to respect in all circumstances, even in the event of a conflict or disturbance are known as "hard core of human rights".

CONTRADICTIONS when IHRL and IHL are CONCURRENTLY APPLIED

An official publication of the ICRC titled "The Use of Force in Armed Conflict", (2013) states: "It was also suggested that imposing human rights obligations on States in armed conflict situations might increase the asymmetry in non-international armed conflicts between States and organized non-State armed groups, since the latter are in principle not bound by human right law. As a consequence there would not only be an asymmetry in the means and methods of warfare used, but also as regards the range of rules belligerence must respect.

This would provide an advantage to organized non-State armed groups which are bound by IHL only while States would be bound by both IHL and human rights law."

Other contradictions between IHRL and IHL are that IHL operates on the principles of Distinction and Proportionality. Such principles on the other hand are unknown in IHRL. Therefore, while the LTTE is required to conform to principles of Distinction and Proportionality as a Party to an Armed Conflict, they are not bound by the need to distinguish between combatants and civilians when IHRL and IHL are concurrent.

This is the most serious objection to the concurrent application of IHRL and IHL because only State Parties to an Armed Conflict are bound by the need to abide by provisions of IHRL and IHL while non-State actors such as the LTTE are bound only by IHL. For instance IHRL requires that States are responsible for the safety of the civilians, but the non-State actors such as the LTTE are not because they are not bound to protect civilians. However, under provisions of IHL all Parties to the Armed Conflict are required to adopt measures to protect the civilians under their charge. Such asymmetries present serious challenges to the concurrent application of IHRL and IHL.

Contradictions could be avoided by addressing issues of accountability on the basis of IHL as stated in Additional Protocol II since it incorporates the "hard core human rights" provisions of IHRL. This position is further justified on the basis of the ruling by the International Criminal Tribunal for former Yugoslavia cited above that "International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities…".

To be continued