New ICRC paradigm on 'the use of force in armed conflicts'

By Neville Ladduwahetty- February 24, 2014, 7:34 PM Confusion on how to categorize Sri Lanka's conflict has a direct bearing on how the issue of accountability is handled. If categorized as an r!ed Conflict the sco"e and nature of the accountability e#ercise would take a certain "rescribed tra$ectory that is defined by internationally acce"ted "rovisions of International %u!anitarian Law &I%L'. (n the other hand) if categorized as *eli!inating terroris!* the accountability e#ercise would be defined by +o!estic Law ,nforce!ent where "rovisions of %u!an -ights Law a""ly. .hus) categorizing it as one or the other or a co!bination of both has a direct bearing on the nature and sco"e of investigations into issues of accountability. In a new docu!ent titled *.%, /S, (0 0(-C, IN -1,+ C(N0LIC.S2 IN.,-3L 4 B,.5,,N .%, C(N+/C. (0 %(S.ILI.I,S N+ L 5 ,N0(-C,1,N.* &IC-C) Nove!ber 6789' the IC-C categorizes the use of force during conflicts as *%ostilities "aradig!* or *+o!estic Law ,nforce!ent "aradig! *. .his docu!ent states2 *.he "aradig!s of the conduct of hostilities and law enforce!ent find their international legal basis in the legal regi!es of I%L and hu!an rights law. .he I%L basic rules governing the conduct of hostilities were crafted to reflect the reality of ar!ed conflict. .hey are based on the assu!"tion that the use of force is inherent to waging war because the ulti!ate ai! of !ilitary o"erations is to "revail over the ene!y. *.his is the %ostilities 3aradig! &"" :-;'. Continuing) the above cited docu!ent states2 *%u!an -ights Law is based on different assu!"tions. It was initially conceived to "rotect individuals fro! abuse by their State. Its rules on the use of force in law enforce!ent essentially "rovide guidance on how force can be used by State agents when it is absolutely necessary in self-defence< to "revent cri!e) to effect or assist in the lawful arrest of offenders or sus"ected offenders< to "revent the esca"e of offenders or sus"ected offenders and in =uelling a riot. In brief) hu!an rights law regulates the resort to force by State authorities in order to !aintain or restore "ublic security) law and order. .he essence of the "rinci"les governing the use of force under law enforce!ent in hu!an rights is that lethal force !ay be used only as last resort in order to "rotect life) when other available !eans re!ain ineffective or without any "ro!ise of achieving the intended result *&ibid'. .herefore) the categorization of the conflict in Sri Lanka is critical in deter!ining whether International %u!anitarian Laws or %u!an -ights Laws a""lies) and thus which of the two IC-C "aradig!s a""lies) with regard to the nature of violations alleged or real) co!!itted by the >overn!ent and the L..,. .his would then set the tra$ectory of the nature and sco"e of any investigations "ertaining to the conduct of the war.

C .,>(-I?IN> the C(N0LIC. .he conflict in Sri Lanka clearly !et the threshold of a Non-International r!ed Conflict as defined by the International Cri!inal .ribunal for the for!er 4ugoslavia of 8@@A &IC.4' in the 3rosecutor v. .adic case. .he .ribunal stated2 *... we find that an ar!ed conflict e#ists whenever there is a resort to ar!ed force between States or "rotracted ar!ed violence between govern!ent authorities and organized grou"s or between such grou"s within a State. International hu!anitarian law a""lies fro! the initiation of such ar!ed conflict and e#tends beyond the cessation of hostilities until a general conclusion of "eace is reached< or) in the case of internal conflicts) a "eaceful settle!ent is achieved. /ntil that !o!ent) international hu!anitarian law continues to a""ly in the whole territory of the warring State or) in the case of internal conflicts) the whole territory under the control of a "arty) whether or not actual co!bat takes "lace there *&+efinition first cited by !e in a article titled* International %u!anitarian Law in the Conte#t of an r!ed Conflict *) .he Island) 1arch 89) 677B. .he /N a""ointed 3anel of ,#"erts also cited this definition in their re"ort of 1arch 6788 &9 years later') and categorized the conflict in Sri Lanka as an r!ed Conflict.'. In addition) unlike !ost other ar!ed dissident grou"s in other countries) the L.., had a co!!and and control structure within its ground) naval and air cadres all in distinguishable unifor!s) and su""orted by land) sea and air ca"abilities and territory recognized as *L.., controlled areas *fro! which sustained attacks against the Sri Lankan state were carried out) aug!ented by acts of terror. .hese attributes backed u" by the o"inion of the IC.4 &8@@A' cited above and other criteria established by guardians of I%L) the IC-C) should be the basis to categorize the conflict in Sri Lanka as an r!ed Conflict u" to the very end in 1ay 677@ . (n the other hand) if the conflict was between the >overn!ent of Sri Lanka and a terrorist grou" +o!estic Law ,nforce!ent "aradig! and %u!an -ights Laws would a""ly. Since acce"table -/L,S N+ >/I+,LIN,S 0(- +, LIN> 5I.% .,--(-IS1 +( N(. ,CIS. under the +o!estic Law ,nforce!ent "aradig!) >overn!ents are e#"ected to !eet an /N+,0IN,+ %I>%,- .%-,S%(L+ in res"ect of res"onsibilities than the terrorist grou" they deal with. .his inter"lay between the two "aradig!s has caused !any co!!entators to be confused< as evident fro! state!ents that even if the conflict in Sri Lanka was an r!ed Conflict) the >overn!ent should act !ore res"onsibly than the L..,. In fact) the forces did act !ore res"onsibly even though they were not re=uired to do so "er I%L. (ne could say that such cut and dried categorizations do not e#ist. %owever) since it cannot be denied that until the very end the conflict in Sri Lanka was an r!ed Conflict) International %u!anitarian Law should a""ly) the conse=uence of which is that the >overn!ent and the L.., should be held ,D/ LL4 res"onsible) and the acce"ted standards and guidelines should be "rovisions of Custo!ary Law that co!e within the sco"e of the dditional 3rotocol II of 8@;;. ,=ual res"onsibility in the conduct of the conflict is se"arate and unrelated to "olitical arrange!ents. .he "revailing confusion is evident fro! the call by the .a!il dias"ora and the .a!il National lliance &.N ' for an international investigation. .he understanding a!ong the! is that

(NL4 the conduct of the >overn!ent should be investigated or evaluated) and not the violations by the L..,. Such distorted understandings "ersist because of the lack of a""reciation of the inter"lay between the %ostilities "aradig! and the +o!estic Law ,nforce!ent "aradig!. .he conse=uence of this is to hold (NL4 the >overn!ent accountable and not the L..,. (n the other hand) if the conflict is categorized as an r!ed Conflict) both the >overn!ent and the L.., would be ,D/ LL4 accountable) !aking it very unlikely that L.., sy!"athizers would o"t for any for! of investigation regarding the conduct of their heroes. I13 C. (0 INE,S.I> .I(NS Conflict categorization has a direct bearing on the sco"e and nature of the investigations called for in ho"es of establishing the *.ruth*. .he 9 charges !ade2 ,stablish!ent of No 0ire ?ones) Indiscri!inate Shelling< and Shortco!ings in Su""ly of %u!anitarian id would be different under the two "aradig!s. /nder the %ostility "aradig!) No 0ire ?ones e#ist (NL4 if a written agree!ent e#isted between the >overn!ent and the L..,. .hat such an agree!ent did N(. e#ist !eans No 0ire ?ones did not legally e#ist. s for Indiscri!inate Shelling) the right to res"ond to attacks of artillery fire) on grounds of self-defence e#ists) albeit in a "ro"ortionate !anner. (n /nderesti!ation of %u!anitarian Needs) the "rovisions of the %ostility "aradig! (NL4 re=uire that access be "rovided for others to "rovide hu!anitarian aid< N(. that the aid itself be "rovided. /nder the +o!estic Law ,nforce!ent "aradig! however) the >overn!ent would have been obligated to act under %u!an -ights Laws) "lacing a heavy burden on the >overn!ent without any obligations on the "art of the L..,. Conse=uently) under +o!estic Law ,nforce!ent the scrutiny would !ostly be on the >overn!ent with relatively little focus on the actions of the L..,. %ow these investigations would be received by those in the South and the North of Sri Lanka would de"end on the choice of the "aradig!. (utco!es of investigations would cause disa""oint!ent and resent!ent de"ending on how their res"ective heroes are "ortrayed. .he end result would be to further "olarize the society with dire conse=uences on reconciliation. .herefore) the >overn!ent has to carry out a concerted ca!"aign to bring to the attention of those calling for investigations) that the inevitable outco!es would be a setback to Sri Lanka's efforts to build a stable society. C(NCL/SI(N new IC-C co!!unication cited above states that the conduct of conflicts find their international legal basis in the legal regi!es of International %u!anitarian Law and %u!an -ights Law) and categorizes conflicts under a *%ostilities "aradig!* or under a *+o!estic Law ,nforce!ent "aradig!*. .herefore) how the conflict is categorized is critical to the sco"e and nature of "ossible investigations on ccountability.

.he facts "resented above clearly warrant Sri Lanka's conflict to be categorized as an r!ed Conflict. .he lack of understanding of the inter"lay between the "aradig!s of %ostilities and +o!estic Law ,nforce!ent has caused co!!entators to add to the confusion by first acknowledging that the conflict in Sri Lanka was an r!ed Conflict) and then e#"ecting the >overn!ent to fulfill res"onsibilities which are not re=uired of the L.., in ignorance of the fact that the cornerstone of r!ed Conflict is that both the >overn!ent and the L.., are ,D/ LL4 res"onsible. wareness of such funda!entals would deter those calling for investigations because the inevitable outco!e would be to e#"ose the conduct of the res"ective heroes of the conflict< leading to reviving !uch resent!ent and bitterness. .his would result in (NL4 "olarizing the co!!unities with drastic conse=uences on reconciliation. .he outco!e of investigations under +o!estic Law ,nforce!ent "aradig! would be to hold the >overn!ent and the L.., accountable to varying degrees based inevitably on so called *credible evidence*) without the "artici"ation of the "ri!ary actors fro! both sides as ha""ened in South frica. Investigations therefore would (NL4 result in a catalogue of atrocities co!!itted without any verifiable evidence. Conse=uently) investigations would N(. lead to any !eaningful conclusions as evident fro! the e#"eriences of *.ruth* Co!!issions in other countries) $udging fro! the !aterial cited below. .he only tangible outco!e is to rekindle bitterness without giving a chance for healing and reconciliation. .he outco!e of *.ruth* Co!!issions in other countries were2 * rgentina) in !ost cases) the co!!ission was only able to deter!ine the status of those disa""eared) rather than being able to na!e the victi!izers< Brazil) the co!!ission will issue a re"ort with its findings. .he grou" will not have) however) the obligation to disclose everything they discover< Canada) .he Indian -esidential Schools .ruth and -econciliation Co!!ission is a currently active &as of (ctober 6789' co!!ission investigating hu!an rights abuses in the Canadian Indian residential school syste!< Colo!bia) ai!s to hel" victi!s to recover fro! the ar!ed conflict< Chile) the re"ort of this co!!ission was used by the govern!ent of Chile to give out "ensions and other benefits to survivors< Czech -e"ublic investigated cri!inal acts fro! the "eriod 8@FB-8@B@ which were unsolvable for "olitical reasons during the Czechoslovak co!!unist regi!e *&5iki"edia'. .he way forward for Sri Lanka is to downgrade ccountability issues as they would be counter"roductive to the all-i!"ortant task of -econciliation. .he focus instead should be to e#"and the sco"e of reconciliation beyond that reco!!ended by the LL-C to include a "olitical solution that would e!"ower the +istrict as the "eri"heral unit with serious "ower

sharing at the Center in an arrange!ent that would enable all co!!unities to share ,#ecutive "ower at the Center) in ratio to their re"resentation in 3arlia!ent. 0ocusing on ccountability is to live in the "ast. 0ocusing on -econciliation is to engage in endeavours central to building an inclusive society and a stable future.