International laws in armed conflict 

By Neville Ladduwahetty-January 27, 2017

Continued from yesterday

POST-CONFLICT APPLICATION of IHRL and IHL

The position originally adopted by some participating in the e-mail exchange was that IHRL and IHL concurrently apply in Armed Conflict. Since then they have conceded that the Law applicable to Armed Conflict of a non-International nature is IHL and furthermore that it is applicable up to the cessation of hostilities in Sri Lanka in May 2009. Their original position that IHRL and IHL concurrently applied was influenced by a misguided notion that such a position would strengthen Sri Lanka’s hand to address issues of accountability and also defend the interests of the security forces better. However, what is evident from the foregoing is that the concurrent application of IHRL and IHL is in fact detrimental to Sri Lanka’s interests.

Since it has been conceded that only IHL applies up to the cessation of hostilities i.e. May 2009, it means that their original position would have jeopardized the interests of not only Sri Lanka but also those of the security forces. Acknowledging this reversal is a manifestation of integrity that is rare and therefore noteworthy. What is even more heartening is that since IHL is more restrictive in its application and offers greater latitude when engaging in an Armed Conflict, Sri Lanka would be in a better position to meet the charges leveled against it since most of these occurred prior to May 2009 than under their previous position that IHRL and IHL operated concurrently.

Notwithstanding these clarifications it is important to note that the ruling by the ICTY was that IHL continues to apply "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". Furthermore, although there was no formal peace settlement, the rationale behind using this ICTY ruling to advantage is that if IHL is applicable ONLY up to May 2009, IHRL cannot be enlarged beyond "hard core human rights" until conflict related issues are resolved. Considering the realities that prevailed post May 2009 such as the situation in Manik Farm and other detention camps, the presence of land mines in undisclosed locations, security related issues from potential acts of terrorism, and identifying former LTTE combatants from bona-fide civilians as well as the challenges associated with providing humanitarian assistance to over 300,000 displaced that included combatants, it would be unrealistic to expect IHRL to operate fully beyond May 2009 without first addressing issues relating to human safety. .

The need to restrict personal liberties until conflict related issues are resolved is addressed in Article 2 Section 2 of the Additional Protocol II. This states: "At the end of an armed conflict, all persons who have been deprived of their liberty or whose liberty has been restricted for reasons relating to such conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty". These are all provisions of IHL.

A more compelling reason not to apply IHRL and IHL concurrently immediately after hostilities cease is that the starting point to relax IHRL is the "hard core human rights". Therefore, the transition process must necessarily be gradual. How gradual is a subjective call that needs to be handled with caution if unintended complexities are to be prevented. Under the circumstances stated above and strengthened by the rulings of ICTY and ICRC the applicable Law beyond the cessation of hostilities should be IHL.

CONCLUSION

This article is the result of a debate between two divergent views as to which International Laws govern non-International Armed Conflicts such as in Sri Lanka. Although Sri Lanka’s conflict had been categorized as one that defeated Terrorism or as a Humanitarian Operation, it has now come to be accepted as a non-International Armed Conflict. Despite this categorization of Sri Lanka’s conflict as an Armed Conflict, which particular International Laws are relevant to issues of accountability have not been explored.

The position advocated by me since 2008 was based on the ruling by the International Criminal Tribunal for former Yugoslavia (ICTY) appointed by the Security Council. My position was that the conflict in Sri Lanka was an Armed Conflict and as such the International Law that should govern the conflict was International Humanitarian Law (IHL). Furthermore, that IHL should apply to the whole territory up to the cessation of hostilities and beyond. The position advocated by others was that International Human Rights Law and International Humanitarian Law should apply concurrently. It is heartening to note that the latter group has now revisited their position and acknowledged that IHL applies up the end of hostilities which in the case of Sri Lanka was May 2009.

The UN official publication cited above 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).

The fact that there are two equally valid positions depends on one body of law being pre-eminent over the other. However, the pre-eminent law is IHL because the provisions of IHRL are derogated to the point that only the "hard core human rights" prevail during an Armed Conflict. Therefore, the task is not to condemn one and extol the other but to find which position would best serve the interests of the security forces and Sri Lanka.

All of the above is academic to many readers. However, its impact on Sri Lanka and in particular the fate of the security forces could be significant. Therefore, it is of extreme importance that a clear and unambiguous determination is made as to the International Laws that should regulate investigations relating to accountability – should it be IHL throughout the conflict and thereafter until conflict related issues are resolved, or IHL up to May 2009 with IHRL and IHL applied concurrently thereafter.

Such a determination should factor in the following statements in the Preamble to the Additional Protocol II of 1977 on which IHL is based. The relevant statements are: "Recalling furthermore that international instruments relating to human rights offer a BASIC (emphasis added) protection to the human person" and "Emphasizing the need to ensure a BETTER (emphasis added) protection for the victims of armed conflicts". This underscores the pre-eminence of IHL in Armed Conflicts.

Unless and until these issues are resolved there would not be a clear remit to the judicial process particularly because the UNHRC of 2015 Resolution, A/HRC/30/L.29 states that the judicial mechanism should "investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable". Since the words "as applicable" are vital there is a need to identify which International Laws are applicable to accountability related issues.