Features
Domestic laws to address accountability
“the general principles of law recognized by civilized nations” (emphasis added). Based on this logic what is proposed herein is that the entire exercise of addressing accountability should be based on the provisions as laid out in the Protocol Additional to the Geneva Conventions applicable to Non-International Armed Conflict as had occurred in Sri Lanka.
by Neville Ladduwahetty
With the UN Human Rights sessions in Geneva starting on 22 February, several commentators have expressed opinions as to how Sri Lanka should address the issues raised in the Report of the UN High Commissioner for Human Rights. Others, some with extremely impressive credentials, have been more specific and confined themselves to issues relating to accountability.
The prevailing perception is that domestic legal provisions are inadequate to address issues relating to accountability applicable to the armed conflict in Sri Lanka that ended in May 2009. Furthermore, this perception is reinforced by the belief that Sri Lanka is not in a position to avail itself of international provisions relating to armed conflict, not only because Sri Lanka has not been a signatory to such instruments, but also because even those that Sri Lanka was a signatory to have not been incorporated into domestic law; a requirement imposed by the dualist system that Sri Lanka is committed to.
For instance, according to the latter perception the provisions in Additional Protocol II of 1977 that are applicable to Non-International Armed Conflict cannot be applied to the Non-International Armed Conflict in Sri Lanka because Sri Lanka is not a signatory to this Protocol. This perception is seriously flawed because it fails to accept the provision in the second paragraph of Article 13 (6) in Sri Lanka’s constitution that recognizes the principle that laws recognized by the “community of nations” have a relevance that cannot be ignored in domestic jurisprudence.
LAW RECOGNIZED by the COMMUNITY of NATIONS
Article 13 (6) states:
“(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.
Therefore, an act that did NOT constitute an offence under domestic law could be a “criminal” act according to the “general principles of law recognized by the community of nations”, where an accused could be tried and punished.
The principle of giving recognition to “general principles of law recognized by the community of nations” is also incorporated in Article 38 of the Statutes of the International Court of Justice (ICJ). Article 38 states:
“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
c. the general principles of law recognized by civilized nations”.
As far as issues of accountability during an armed conflict are concerned, general principles of both International Humanitarian Law (IHL) and International Human Rights Law (IHRL), subject to derogation, are recognized by the community of nations as part of the body of international law. International Humanitarian Law embodies laws that govern both International and Non-International Armed Conflicts. The source of these laws are the four Geneva Conventions of 1949. They are universally accepted by the community of nations as the laws that govern Armed Conflict. Article 3 that relates to Non-International armed conflict are common to all four Geneva Conventions, hence it is often referred to as “common article 3 of the Geneva Conventions”.
Since the four Geneva Conventions are universally accepted by the community of nations as laws that govern armed conflict, and Article 3 is common to all four, it must necessarily follow that Article 3 is also universally acceptable to the community of nations. Furthermore, because one Article was found to be inadequate to address the complexities of numerous non-international armed conflict that sprang up following decolonization after World War II, a body of experts developed Additional Protocol II in 1977. Therefore, since the Additional Protocol is an extension of common Article 3, Protocol II Additional to the Geneva Conventions should ipso facto be part of the body of laws acceptable to the community of nations. This makes common Article 3 and by extension Additional Protocol II of 1977 acceptable to the community of nations. And because of it, Additional Protocol II of 1977 should be the basis to address accountability issues relating to Sri Lanka’s Armed Conflict.
Its full title is:
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II)
Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law applicable in Armed Conflicts
Entry into force: 7 December 1978, in accordance with Article 23
ADITIONAL PROTOCOL II to ADDRESS ACCOUNTABILITY
Since the text of the Protocol in respect of acts that are prohibited during a non-international armed conflict are similar to common Article 3, addressing issues of accountability based on the provisions of the Additional Protocol II is justified and therefore should be acceptable to the community of nations. The relevant sections of each are presented below.
Common Article 3
“To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
Part II of the Additional Protocol states:
1. “All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors”.
2. “Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
(a) Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Slavery and the slave trade in all their forms; (g) Pillage; (h) Threats to commit any of the foregoing acts”.
In view of the prohibited acts listed above it is pertinent to ascertain whether a person found guilty of having committed any of the acts listed above could be punished under existing provisions of Sri Lanka’s Penal Code. If current provisions of the Penal Code are in fact sufficient to address violations alleged to have been committed during the final stages of Sri Lanka’s Armed Conflict, there is nothing to prevent Sri Lanka from undertaking such an exercise provided the procedure laid out in Article 6 “Penal prosecution” of the Additional Protocol II of 1977 is followed. This Article is presented below:
SCOPE of SRI LANKA’s PENAL CODE
Judging from the nature of the alleged violations committed by the Security Forces, particularly during the final stages of the armed conflict, the appropriate section of Sri Lanka’s Penal Code would be in Chapter XVI titled “OF OFFENCES AFFECTING THE HUMAN BODY and OF OFFENCES AFFECTING LIFE”. A few of the offences listed in this Chapter are: (a) Culpable homicide and murder; (b) Grievous hurt and voluntarily causing hurt; (c) Wrongful restraint and wrongful confinement; (d) Criminal force and assault; (e) Kidnapping, abducting and serfdom and slavery and recruitment of children for use in armed conflict; (f) Rape and grave sexual abuse. In addition to the broad scope of offences presented above, the Penal Code lists a range of offences that expand the scope beyond the narrow limits of the list presented.
It is therefore self-evident that the Penal Code in its current form would be sufficient to address issues of accountability based on the nature of violations alleged to have been committed by the Security Forces, provided the procedure outlined in Article 6 of the Additional Protocol of 1977 is followed, which in essence is: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence”.
Additional Protocol II of 1977
Article 6 – Penal prosecutions
1. This Article applies to the prosecution and punishment of criminal offences related to the armed conflict.
2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality. In particular:
(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) Anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) Anyone charged with an offence shall have the right to be tried in his presence;
(f) No one shall be compelled to testify against himself or to confess guilt.
3. A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.
4. The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children.
5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.
CONCLUSION
UNHRC Resolution 30/1 that was co-sponsored by the former government was of the view that accountability could be addressed only by establishing “a judicial mechanism with a special counsel that included the special counsel’s office of Commonwealth and other foreign judges, defence lawyers, etc…” (Paragraph 6). This view is endorsed by those who have doubts about the competence of the existing law and order system to address issues of accountability in a credible manner.
Instead, of adopting the arrangement proposed in Resolution 30/1, what is proposed herein is that accountability is addressed using laws recognized by the community of nations, starting with the Geneva Conventions that are universally acceptable. Furthermore, Article 13 (6) of Sri Lanka’s constitution also gives special recognition to principles of law recognized by the community of nations.
More specifically, what is relevant to Sri Lanka is common Article 3 applicable to Non-International Armed Conflict. This single Article was found to be inadequate to address the complexities of internal conflicts that sprang up with decolonization following the conclusion of World War II. As a result, common Article 3 was expanded in scope and adopted as “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II)
The logic that follows is that if Geneva Conventions are accepted by the community of nations, then it must follow that common Article 3 of the Geneva Conventions and its extension in the Protocol Additional to the Geneva Conventions should also be acceptable to the community of nations, regardless of whether it was ratified by a State or not. Furthermore, Article 38 of the Statutes of the International Court of Justice base their judgments on “the general principles of law recognized by civilized nations” (emphasis added).
Based on this logic what is proposed herein is that the entire exercise of addressing accountability should be based on the provisions as laid out in the Protocol Additional to the Geneva Conventions applicable to Non-International Armed Conflict as had occurred in Sri Lanka. Since the Protocol specifies acts that are prohibited during a Non-International Armed Conflict and Sri Lanka’s Penal Code also identifies similar acts as criminal, no barrier should exist to address issues of accountability under existing judicial arrangements and provisions of law, provided the procedures adopted are those outlined in Additional Protocol II 0f 1977. It is time governments give serious consideration to this proposal, for the sake of those that gave their full measure of devotion to make the country whole and its people safe.
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Features
Islamophobia and the threat to democratic development
There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
Features
Pakistan’s love of Sri Lanka
By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
Features
Covid-19 health rules disregarded at entertainment venues?
Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!