The issue of accountability

by Neville Ladduwahetty

(March 10, Colombo, Sri Lanka Guardian) The most recent attempt to raise the issue of accountability concerning events that occurred during the final stages of the conflict in Sri Lanka was by the United States Senate. Of the 4 issues contained in the US Senate Resolution 84, this paper intends to focus on the first two. The first resolution: "commends United Nations Secretary-General (UNSG) Ban Ki-moon for creating the three person panel to advise the Secretary-General on the implementation of the commitment of the Government of Sri Lanka to human rights accountability", and the second resolution: "calls on the Government of Sri Lanka, the international community, and the United Nations to establish an independent international accountability mechanism to look into reports of war crimes, crimes against humanity, and other human rights violations by both sides during and after the war in Sri Lanka and to make recommendations regarding accountability".

Before embarking on an accountability exercise it is necessary to establish the standards by which accountability is judged. For instance, if what took place in Sri Lanka was a "war" as stated in resolution #2, the criteria for accountability should be International Humanitarian Law (IHL) as in Additional Protocol II of 1977 since it was a Non-International armed conflict. Consequently, International Human Rights Law (IHRL) would NOT apply. Despite this accepted standard for judging events during a war or an "armed conflict", both resolutions refer to "Human Rights" violations. Furthermore, the fact that resolution #2 refers to reports of war crimes and crimes against humanity, is confirmation that what took place in Sri Lanka was a "war" and nothing less. Under the circumstances, any violations need to be judged NOT by human rights standards but by standards set out in the Rome Statute of the International Criminal Court of 1998 because Additional Protocol II of 1977 does not address war crimes or crimes against humanity.

Article 8 of the Rome Statute addresses war crimes. While Article 8 paragraphs 2 (c) and (e) set out details of what constitutes war crimes, paragraph 1 and 3 set out the context in which they should be assessed.

Paragraph 1 states:

The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Paragraph 3 states:

Nothing in paragraphs 2 (c) and (e) shall affect the responsibility of a Government to maintain or reestablish law and order in the State or to defend the unity or territorial integrity of the State, by all legitimate means". It should be noted however, that the US and Sri Lanka are among some of the countries that are not signatories to the Rome Statute.

It is apparent from the foregoing that there are contradictions in the US Resolution 84. Despite the inclusion of terms such as "war", "war crimes and "crimes against humanity, the fact that Resolution 84 does not make reference to the relevant "International Humanitarian Law" reflects the degree of confusion that seems to exist in the usage of the terminology. Consequently, what is needed before any accountability exercise is set up is to properly categorize the conflict. It is such a categorization that would determine and clarify whether Humanitarian Law OR Human Rights Law would apply.

If, what took place in Sri Lanka was not a "war" but perhaps an insurgency that used terrorism, suicide bombers and human shields, the appropriate standards to judge violations do not currently exist under the rubric of Human Rights Law. If such standards exist, there would not be a need for the UNSG to appoint an expert panel to "establish standards, benchmarks and parameters" as required by him. An accountability exercise under such a categorization would have to tread virgin ground because accepted international standards to judge today’s insurgencies do not exist. Therefore, however committed the Sri Lankan Government is, the task involved would have to be undertaken as an international effort considering the fact that the standards developed would have to apply to internal conflicts that today involve terrorism. In the context of today’s conflicts what took place in Sri Lanka would only be a case study in the development of future standards. Therefore, the call to set an "independent international accountability mechanism" involving the Government of Sri Lanka, the international community, and the United Nations falls far short of what is needed if the study is limited only to what took place in Sri Lanka during the early months of 2009.

The US Assistant Secretary of State Robert O. Blake also almost simultaneously expressed the need to address issues of accountability, and suggested that it would be best if such an exercise is carried out by Sri Lanka. In view of the fact that accountability has to be assessed depending on the categorization of the conflict as to whether it was an armed conflict or an insurgency, the international community would have to accept the choice made by the Sri Lankan Government. On the other hand, if Sri Lanka is to accept the standards developed by UN Secretary-General’s expert panel it would amount to intervention in an issue that is strictly internal and therefore a violation of its sovereignty. The Government’s position is that the LLRC it has set up is its own internal mechanism. In the absence of accepted international standards, the question then is whether the international community would accept the conclusions of the inquiry conducted by the LLRC. If, as Ambassador Blake stated during his interview to AFP, if the Government does not carry out an accountability exercise in a "manner that is consistent with international standards…" the US would favour an international war crimes probe on Sri Lanka (The Nation, March 6, 2011). What is lacking during this entire episode is that the international community that includes the US does not state precisely what these "international standards" are. If such standards exist there would not be a need for the UNSG to appoint an expert panel to advise him on the standards to be used to guide an accountability exercise. And if international standards do NOT currently exist, what international standards is Ambassador Blake referring to?

The lesson that is missed in all these attempts to prod Sri Lanka is that the law enforcement model is governed by human rights law. The armed conflict model is primarily governed by the laws of war. What needs to be accepted is that during the conflict events were governed by the laws of war, while post-conflict should be governed by human rights and laws of enforcement.

Considering the fact that over 80% of today’s conflicts are internal, involving terrorism, suicide bombing and human shields regardless of whether they are armed conflicts or insurgencies, the need is to develop internationally accepted standards, perhaps a new Protocol, to guide member states and non-state actors with focus on the protection of civilians.