LLRC, accountability issues and Dhanapala’s advise

by Shamindra Ferdinando
Courtesy The Island 

(July 22, Colombo, Sri Lanka Guardian) Delivering the Lakshman Kadirgamar memorial lecture in Colombo recently, British Defence Secretary Dr. Liam Fox expressed the hope that the Lessons Learnt and Reconciliation Commission (LLRC) would examine all evidence relating to alleged war crimes in Sri Lanka and make final credible recommendations to the Rajapaksa government.

The British politician went on to say that those recommendations would play a key role in strengthening the process of accountability and support peace and reconciliation as they moved forward. Dr. Fox was here close on the heels of his parliamentary colleague Alistair Burt, parliamentary Under Secretary of State at the Foreign and Commonwealth Office threatening Sri Lanka of dire consequences unless the government initiated credible investigations before end of this year. Burt was responding to ‘Sri LankaKilling Fields’ telecast by Channel 4.

Subsequently, the US endorsed the British position citing the 50-minute long documentary produced by Channel 4 News, another UK media organization as evidence of war crimes. A section of the British media is spearheading a mega anti-Sri Lanka blitz at the behest of the UK-based Global Tamil Forum (GTF) and the possibility of irregularities couldn’t be ruled out.

UK media

For those preaching the values of the British media, the ongoing phone hacking controversy involving News of the World couldn’t have come at a worse time. Now Sean Hoare, the former News of the World showbiz journalist who was the first to allege Andy Coulson, a close associate of the British premier David Cameroon was aware of phone hacking by his staff, was found dead on Monday (July 18). The unprecedented phone hacking and police bribery scandal forced two of London’s top police officers to resign in less than 24 hours and prompted Prime Minister Cameron on Monday to call for an emergency session of parliament.

Scotland Yard Chief Paul Stephenson quit Sunday night, followed by Assistant Commissioner John Yates. Yates decided two years ago not to reopen police inquiries into phone hacking and police bribery by tabloid journalists, saying he did not believe there was any new evidence to consider.

Detectives reopened the investigation earlier this year and now say they have the names of 3,700 potential victims.

British Home Secretary Theresa May announced Monday that a police inspectorate would investigate possible police corruption.

Dhanapala before LLRC

With the LLRC expected to present its much awaited report in November 2011, it would be pertinent to discuss what former UN Under Secretary General for Disarmament Affairs Jayantha Dhanapala’s thought provoking presentation to the LLRC. In the wake of a section of the international community wanting to haul up Sri Lanka before the International Criminal Court (ICC) for alleged war crimes during eelam war IV, the country couldn’t afford to ignore what the one-time head of the Norwegian-funded Secretariat for Coordinating Peace Process (SCOPP 2004-2005) Dhanapala had to say.

In fact, of all those who appeared before the LLRC, Dhanapala, I believe made the two most important recommendations on the subject of International Humanitarian Law (IHL) and the controversial issue of responsibility to protect concept . In spite of some challenging The Island coverage of Dhanapala’s presentation (Aug. 2010), of what he essentially said was that IHL should not apply to Sri Lanka’s war against the LTTE and that a conventional army couldn’t be bound by IHL in fighting a terrorist organization.

ICC position

Unfortunately, the government pathetically failed to exploit Dhanapala’s sentiments due to its lethargic attitude. The government should campaign vigorously to thwart the ongoing conspiracy to destabilize the country to force the incumbent administration out of power. A recent statement attributed to the head of the ICC, Sang-Hyun Song that his court had no jurisdiction to act on matters from non-signatory states such as Sri Lanka, Israel and the US could give the government a false sense of security. The Australian quoted the South Korean as having said that his court complemented national systems of criminal justice.

If non-signatories couldn’t be targeted how could judges of the ICC issued a warrant late last June for the arrest of Libyan leader Moammar Gaddafi, his son and a top military intelligence chief, calling for them to stand trial for crimes against humanity in connection with a violent crackdown on anti-government protesters this year.

The three-judge pretrial chamber ruled that ICC Prosecutor Luis Moreno-Ocampo had established "reasonable grounds" to charge Gaddafi, his son Saif al-Islam Gaddafi and Abdullah al-Senussi, the chief of military intelligence, with the murder and persecution of hundreds of Libyan civilians since the government began suppressing public protests Feb. 15.

Dhanapala on IHL

Let me get back to Dhanapala’s presentation made in public in spite of the LLRC giving him an opportunity to speak in camera. Declaring that he had nothing to hide from the Sri Lankan public, the veteran diplomat said that the conflict that had ravaged Sri Lanka was not only the result of the perversity and the venality of the LTTE and its leader Velupillai Prabhakaran, but also the cumulative effect of bad governance on the part of successive Sri Lankan Governments.

Commenting on the IHL, Dhanapala said: "….The primary purpose of International Humanitarian Law is the protection of civilians, and we have been exposed to a terrorist group who have used child soldiers unconscionably; who have used civilians as human shields and who have used suicide bombers to cause mindless destruction of property and the deaths of thousands of innocent civilians. How does a conventional Army of a nation State pursue a conflict with that kind of combatant? The rules of war as they exist today do not cater for that situation. We would be providing something innovative to the international community if we can discuss amongst our outstanding international lawyers here – and we have a galaxy of talent from Judge Weeramanthri to Dr. Rohan Perera (a member of the LLRC) to Dr. Lakshman Marasinghe and many others - who could all form a brains trust on behalf of the Government, engage with the International Committee of the Red Cross, the guardian of the Geneva Conventions, the 4 Treaties and the 3 Additional Protocols which today constitute International Humanitarian Law in order to try to give some guidance to armies of nation States as to how they should react to such a situation. We were very fortunate that in the end game of our conflict in May of 2009 we were able through the bravery of our own Army to save ourselves the possible holocaust of 300,000 civilians dying in the final stage. The earth bund behind which they were held as human shields was breached at great sacrifice by our Army and we were able therefore to minimize civilian losses. I do not think we have an accurate estimate as to what the civilian losses were in the cross-fire but there were civilian losses. The tragedy would have been much greater if not for the bravery of our soldiers. But what if there was a tragedy greater than what happened. We would have been then denigrated in the eyes of the international community for no other reason but the fact that these civilians were being held as human shields. We have to I think engage first of all the ICRC and then the rest of the international community in order to perhaps convene a diplomatic conference to discuss the formulation of a new protocol with regard to combat with non state actors. This is a phenomenon that is taking place all over the world and I think the marshalling of international opinion on this issue will be one of the contributions that we can make in the codification of international humanitarian law."

Focus on R2P

"The other issue that I think important for us is to make some kind of innovative move drawing from the experience of having been in conflict with the Liberation Tigers of Tamil Eelam on the issue of the responsibility to protect concept. This is a concept that you will recall was embraced in the UN General Assembly’s Summit of 2005, the 60th UN General Assembly when the Heads of States adopted the responsibility to protect concept which basically means that the primary responsibility for the protection of civilians lies with the Government of that State. But if a Government is either unwilling because it is a dictatorship or unable because it is a failed State to exercise its sovereign authority to protect its own civilians then that authority passes to the international community but subject to the fact that it has to be approved by the Security Council through a Resolution.

India’s responsibility

Now I think it is important for us to expand that concept to bring in the culpability of those members of the international community who have subscribed to the situation that has caused injury to the civilians of a nation. I talk about the way in which terrorist groups are given sanctuary; are harboured; are supplied with arms and training by some countries with regard to their neighbours or with regard to other countries. We know that in our case this happened, and I don’t want to name countries, but even countries who have allowed their financial procedures and systems to be abused in such a way that money can flow from their countries in order to buy the arms and ammunitions that cause the deaths, the maiming and the destruction of property in Sri Lanka are to blame and there is therefore a responsibility to protect our civilians and the civilians of other nation States from that kind of behavior on the part of members of the international community, and I think this is something that will echo with many countries in the Non Aligned Movement where Sri Lanka has a very respected position and where I hope we will be able to raise this issue."

ICRC’s role

Responding to a query regarding rules of engagement by LLRC member H.M.G.S.Palihakkara, Dhanapala, while referring to his experience with the ICRC said: "After every major conflict in the world from the late 19th century we have had a gradual building up of international humanitarian law. After World War II in 1949 there were a set of Geneva Conventions and so because the prevalence of non state actors and the problem of international terrorism is so widespread and because all civilized societies agree that no cause can justify the use of terrorism and because we have already something like 13 international conventions banning all forms of terrorism, we need to look into how counter terrorism can take place within the norms of international humanitarian law. It is not going to be an easy task because we are being confronted by ruthless enemies who disregard civilized norms and who are ready to use child soldiers; who are ready to use suicide bombers and are ready to use civilians as human shields. How does a well trained professional army react to individual situations? I think if we engaged in a dialogue – in a civilized diplomatic dialogue with other countries and with the ICRC – we will find a lot of people in similar situations; whether it is in Afghanistan; or whether it is in Iraq; or whether it is in some other place, Colombian Government fighting the FARC guerillas and so on. We will be able to make a contribution towards counter terrorism which is a very serious problem confronting the international community."

Share SL’s experience

On the issue of responsibility to protect concept, Dhanapala said:…my point was that the Canadian Commission that was responsible for the original report and which came up with what seemed at that time to be very cogent recommendations in the wake of what had happened in the 1990s in Rwanda and in Srebrenica in the Balkans was perhaps not completely the picture that people who had suffered from terrorism sought, and I think countries such as ours have a duty by the international community to present our experience and to try to extrapolate from it so that there could be a greater understanding of the responsibility of each and every member of the international community to prevent their territory being used for terrorism in other countries. This of course is already there in a number of treaties and in a number of resolutions adopted in the UN General Assembly. But for it to be added on consciously as part of the responsibility to protect concept I think it is very important because otherwise we are only having a situation where if a country is unable to protect a group of its citizens whether they be of a religious minority or an ethnic minority or a political dissident group, the situation automatically moves into the Security Council where matters of real politik begins to play and that could be very dangerous for small countries like Sri Lanka, and we need therefore to highlight the fact that causes that led to any situation in a country where a particular minority is affected could be as a result of incitement from abroad; financing from abroad; training of militias from abroad and I think that has got to be highlighted and I am sure that there are many countries – large countries including India – who have the same concern and who will join in the cause with us. Perhaps the Non Aligned Movement is an arena in which we can launch this initiative because there are a number of countries in the Non Aligned Movement who are not entirely happy with the concept of responsibility to protect even though it was adopted at the summit level in 2005 at the UN General Assembly Summit.

SC Resolution 1373

Asked by LLRC member Dr. Rohan Perera whether the issue of vulnerability of small states could be tackled through reinforcement of established principles such as the non use of territory for hostile acts against other States as clearly set out in Security Council Resolution 1373, Dhanapala asserted: "I agree that there are a number of conventions, number of resolutions which certainly prescribe particular types of behavior for the international community. The problem is in their lack of implementation and while we have no one mechanism that can implement these laws we need to perhaps agitate for some mechanism to do that. But at the same time we must talk about those obligations within the context of right to protect concept. It is not always done in that context. Right to protect is discussed as a separate concept without necessarily linking it to this question of the export of terrorism and the abuse of countries with regard to the export of terrorism and trans border terrorism.