Photo courtesy: Life
By Kalana Senaratne | Groundviews
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Thereafter, he had said the following too: that there was a need for an international protocol to deal with Armed Forces engaged in fighting terrorism with non-State actors and that ‘many of the Rules of War and International Humanitarian Laws were based on the assumption that the warring parties were conventional armies of states but in Sri Lanka’s case the LTTE had totally disregarded those laws and principles.’
Finally, he seems to have said something that even President Mahinda Rajapaksa or Defence Secretary Gotabaya Rajapaksa would have been reluctant to claim so openly: that International Humanitarian Laws (IHL) should not apply to Sri Lanka’s war against the LTTE and that a conventional army cannot be bound by international laws in fighting a terrorist organization (The Island, 26 August 2010).
The initial questions that arise here are these: where was Dr. Dhanapala all this time? Is this the same Dr. Dhanapala who, talking about the CFA some years ago, saw light at the end of the tunnel? Is he the one who was accused of trying to appease the LTTE through the P-TOMS? Why did Dr. Dhanapala decide to remain somewhat silent during the last stages of the war? Was there any reason to wait until the war was over for him to argue that IHL did not apply to the conflict in Sri Lanka? Is he coming out so boldly against the LTTE because the LTTE was defeated and destroyed in May 2009? What then of ‘integrity’ of these learned and respected gentlemen who say (or do not say) one thing during times of war, and a completely different thing after the war?
More importantly, what happened to Dr. Dhanapala who delivered the keynote address at a seminar organized by the ICES and the UNDP in November 2007, titled “Sri Lanka as a Member of the UN”? That was a very interesting and informative speech, in which Dr. Dhanapala seemed to have reminded the audience of Article 2(7) of the UN Charter and then stated that “we must also recognize that we have willingly conceded sovereignty by joining several treaties and in these treaties we have got certain obligations that we fulfill.” And then, Dr. Dhanapala said something else too. He said that: “The fact that there is a conflict requires us to maintain the Geneva Conventions and the ICRC is there to help us.”
If so, would Dr. Dhanapala tell us why we were required to maintain the Geneva Conventions in 2007, and why he is arguing now (in 2010, one year after the war) that IHL should not have been applicable?
IHL and the deprived soldier: reforming existing laws
Firstly, the Conventions and Protocols which form the general body of IHL are old. The basic documents, in this regard, are the four 1949 Geneva Conventions (the Geneva Conventions that Dr. Dhanapala referred to in his 2007 keynote address) and the two 1977 Additional Protocols. The nature of armed conflict, especially internal armed conflict, has changed over the years. The conventional soldier is today facing unconventional and sophisticated non-state actors and very dangerous terrorist groups.
It can also be seen that some of the provisions contained in the above mentioned Conventions and Protocols do not adequately cover problems that the conventional soldier might face today. Due to the arduous task that the soldier is faced with, he might even consider these conventions to be of little meaning.
Take Common Article 3 (i.e. common to all of the Geneva Conventions), which states that persons taking no active part in hostilities shall be treated humanely. But practically, the conventional soldier faces a problem here because he cannot easily distinguish between a person who takes part in hostilities and one who does not, if, for example, the person concerned is a potential suicide bomber dressed up as a civilian. Consider for instance the video footage of a female suicide bomber blowing herself up inside Minister Douglas Devananda’s office. Certainly, until the blast took place, no one was able to identify clearly that that woman was there on a suicide mission. Consider then the enormous difficulty that the soldier or policeman would face, especially in conflict areas. Article 3 informs the soldier that if a person is not taking part in hostilities he/she should be treated humanely; but then, how do you know that the man or woman or child approaching him is not a person taking part in hostilities, in the first place?
Take the issue of indiscriminate attacks for instance (‘indiscriminate’ is defined in Article 51(4) of Additional Protocol I concerning protection of victims of international armed conflict). The soldier has to ensure that he does not resort to indiscriminate attacks, and he always needs to distinguish between military and non-military objectives. But practically, if the soldier is facing a group such as the LTTE, there are enormous difficulties here since terrorist groups use homes, hospitals and schools to train terrorists and perpetrate further acts of terrorism. Consider the difficulty that the soldier who has firm intelligence reports to conclude that that home or hospital or school under scrutiny is a military target and one which is used by terrorists.
These examples would suggest that States need to think seriously of reforming certain laws, in a way current difficulties faced by the soldier are taken into account. Importantly, States should also be mindful of the importance of concluding a comprehensive legal framework which covers all aspects of counter-terrorism, especially in an era as this when States face many problems due to terrorism. And in this regard, one part of the argument raised by Dr. Dhanapala contains much truth.
Internal armed conflicts and the application of IHL
However, whatever these problems may be, there should not be any doubt concerning the application of IHL, the Geneva Conventions in particular, in internal armed conflict situations. As the Appeals Chamber of the ICTY held in the Tadic case (1995), IHL should apply to all conflicts, international and internal; some important reasons for such an application being the cruel and protracted nature of such conflicts, the frequency of such conflicts and the importance of human rights protection during conflict situations.
To argue, like Dr. Dhanapala has argued, that the current body of international laws should not apply just because it is inadequate to cover present realities of armed conflict is a very dangerous argument; an argument that no democratic state could ever make. As Antonio Cassese once pointed out, certain rules of conduct of hostilities in international armed conflict have been extended, on a gradual basis, to internal conflicts as well. It is necessary to understand the logic behind this extension; as the ICTY in the Tadic (Interlocutory Appeal) stated, “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.” It follows then that the humanitarian laws that would be applicable in international armed conflicts should also apply in cases of internal armed conflicts.
It is here that one should also understand that while the present body of IHL has its weaknesses, it still plays a most important humanitarian purpose. The Geneva Conventions, in this regard, play a vital role in ensuring that there is at least some minimum protection of civilians who are trapped in conflict situations. Article 3 (quoted above) of the Geneva Conventions, it has been noted, constitute the ‘minimum yardstick’ applicable to armed conflicts of any nature; as was held by the ICJ (Nicaragua (merits), 1986).
And in this regard, it is vitally important that one approaches this issue not only from the perspective of the soldier, but also from the perspective of the innocent civilian. How preposterous would it be if a State is to argue that such international humanitarian norms do not apply in internal conflicts? What minimum relief would the innocent civilians have? Would the civilian see any difference between the terrorists who deny their basic freedoms and the State which argues that even that ‘minimum yardstick’ is not applicable? This is one of the fundamental reasons why Dr. Dhanapala’s argument is extremely dangerous. It is an argument that is made in order to evade responsibility for the mistakes that soldiers could make. This is also an argument which can be made to perpetrate indiscriminate killings; a course of action that terror groups resort to, not armed forces of a democratic state. This is also the kind of argument that the disgruntled and obnoxious officials of the US State Department can and do make, and certainly not one a distinguished former diplomat of Sri Lanka and the UN could ever make, in all seriousness.
‘Sri Lanka as a Member of the UN’
Ironically, one needs to revisit the title of the 2007 keynote address of Dr. Dhanapala and consider what Sri Lanka’s role as a Member of the UN would be if Sri Lanka is to make the argument that IHL did not apply to the conflict that concluded in May 2009 and that its armed forces were not bound by any international laws; the argument that Dr. Dhanapala has made recently.
President Rajapaksa, it should not be forgotten, has held a different view on this matter, for he has stated in his speeches that the task of his brave soldiers was difficult because they were carrying the gun as well as the Declaration of Human Rights when going into the battlefield. While this may be political rhetoric, undoubtedly, one needs to appreciate the deeper message here; i.e. that the soldiers were mindful of the international norms and standards that had to be followed, of the importance of treating civilians humanely, of the importance of protecting human rights, of the importance of all the international humanitarian obligations that soldiers of a State had to fulfill. That is the correct approach; and to retract now and argue that IHL did not apply to the Sri Lankan conflict would be a disgrace to a country and the brave armed forces which defeated the LTTE.
Sri Lanka, as a Member of the UN, should always maintain that all important moral high ground, however difficult that task would be. Sri Lanka, as a Member of the UN, should still be mindful of former UNSG Kofi Annan’s Report ‘Uniting Against Terrorism’ (A/60/825) in which it is stated that in the fight against terrorism we “must never sacrifice our values and lower our standards to those of the terrorists. International cooperation to fight terrorism must be conducted in full conformity with international law, including the Charter of the United Nations and relevant international conventions and protocols. It is an obligation of States to ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law.” (para 112, emphasis added). States Members of the UN resolved to recognize the importance of this message when the General Assembly adopted a resolution titled ‘The UN Global Counter-Terrorism Strategy’ (A/Res/60/288), on 20 September 2006.
It should also be remembered that even the numerous conventions on the suppression of terrorist acts highlight the importance of the rights, obligations and responsibilities of States and individuals under international law, in particular international humanitarian law (for example, Article 19(1) of the 1997 International Convention for the Suppression of Terrorist Bombings).
One only hopes that the press has misquoted Dr. Dhanapala, and misquoted badly. If not, it is rather alarming to note how Dr. Dhanapala, a former Under-Secretary General of the UN, seems to have forgotten the importance of IHL, and argues that a state should not be bound by international laws when fighting a terrorist organization.
Kalana Senaratne (LL.B, LL.M - University College London), is currently a postgraduate research student at the Faculty of Law, University of Hong Kong.
© Groundviews
Sunday, August 29, 2010
Internal armed conflicts, humanitarian laws and the curious transformation of Dr. Jayantha Dhanapala
Sunday, August 29, 2010
Sri Lanka: Garment factories exploiting Northern girls, union charges
By Chris Kamalendran | The Sunday Times
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“After many years of war, the people in these areas are ignorant of workers rights, wages and so on and are easy prey for the apparel operators. Most of the big names currently touring the north and east are known to be serious violators of labour laws,” Mr. Fernando charged.
He said there was a huge dearth of factory hands at the moment because many were leaving owing to poor wages and working and living conditions. “Therefore the apparel bosses have switched to the north and east where there is widespread unemployment. These people are willing to work for any wage and they care less about the working or living conditions. At the end of the day, these workers will be exploited,” he said.
Meanwhile politicians in the north and east have also begun to frown on the ad-hoc system of recruiting workers from the area. In one case a local MP stopped a group of Kilinochchi girls from being loaded into a bus before they were taken to a factory in Kandy.
TNA politician S. Sritharan said they had no objection to the recruitment but it should be done in a proper manner. “These girls are just loaded on to buses. No one knows where they are heading for. There should be some transparency in the whole issue.
I have taken the matter up with the authorities,” he said.He said that even some security forces personnel were openly assisting in the apparel operators’ campaign to recruit unsuspecting girls.
Lasantha De Silva with Timex Garments admitted they were involved in a recruitment drive in the north and east but said there was no illegality in it.
© The Sunday Times
Sunday, August 29, 2010
Human rights defender asked to leave Sri Lanka
The Sunday Leader
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Florington Asirwatham, the Country Director for NVPF, said that no reason had been given. He was of the view that this cancellation was to do with the general tightening up of visas for NGO’s in the country, as opposed to a direct conflict with the government on the Human Rights Defenders programme, which is still active in the North and East of the island.
© The Sunday Leader
Saturday, August 28, 2010
Sri Lanka: Burnt body of male recovered in Mannaar
Photo courtesy: Tamil Net
Tamil Net
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Mannaar magistrate conducted the inquest into the death Friday around 1:20 p.m at the place where the body was found.
Directed by the magistrate police handed over the body to Mannaar General Hospital mortuary for post mortem examination and identification.
© Tamil Net
Saturday, August 28, 2010
SL President secure two - thirds majority to change the constitution
By Shihar Aneez and Ranga Sirilal | Reuters
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"We will not join the government, but we will support the proposed constitutional amendments," Basheer Segu Dawood, the chairman of the ethnic minority party Sri Lanka Muslim Congress, told Reuters.
The president's United Peoples Freedom Alliance won a sweeping majority in an April parliamentary poll after Rajapaksa's re-election to the presidency three months earlier.
Rajapaksa has already struck a tentative deal to return Sri Lanka to rule by an executive prime minister. That would allow him to by-pass the existing two-term limit as head of state and run the country as prime minister.
With the latest support, Rajapaksa's ruling United People Freedom Alliance (UPFA) can command 154 votes in the 225-seat parliament, giving the president more than the two-thirds majority required for a constitutional change.
The crossovers come as the government and the main opposition United National Party are in discussions to change the constitution and reduce the president's executive powers.
Critics blame the president's strong executive powers under the present constitution for political interference in the judiciary, public service and police, allowing the head of state to manipulate the system as he or she wishes.
© Reuters
Saturday, August 28, 2010
Operation Pacific Angel-Sri Lanka concludes
Photo courtesy: Master Sgt. Mike Hammond | U.S. Air Force photo
By Master Sgt. Mike Hammond | US Air Force
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Pacific Angel-Sri Lanka medical teams provided primary, dental and optometry care to 4,647 patients in three locations and dispensed 4,462 prescriptions. Included in that total are 1,662 optometry patients and 562 dental patients who recieved medical care. The Pacific Angel optometrists provided 1,448 pairs of eyeglasses, and the dentists performed 78 extractions.
"Together, we were able to provide medical care to more than 4,400 Sri Lankans as well as conduct capacity building seminars in pediatrics and mental health," said Col. (Dr.) David O'Brien, the 13th Air Force surgeon general. "These activities have had an enormous and positive impact on several communities in Sri Lanka. This is an extraordinary accomplishment for all the participants of the Pacific Angel-Sri Lanka mission.
"A great deal of thanks to our Sri Lankan counterparts for their support during this Pacific Angel mission -- we couldn't possibly have been as effective without their support," he said.
Two medical educational programs were also offered, which provided U.S. and Sri Lankan professionals the opportunity to exchange information and practice advanced skills related to mental health and pediatric emergencies.
Following the completion of medical treatment at each site, Pacific Angel members donated the remaining medical supplies to the Cheddikulam Hospital and Puttalam Township.
In addition to the medical care provided during Pacific Angel-Sri Lanka, the Pacific Angel civil engineering teams repaired and refurbished two primary schools, which improved the educational environment for nearly 200 students. The U.S. forces also partnered with the mayor of Puttalam to provide a power generator, lighting and three new computers to the Semandalawa Kanista Vidyalaya school in Puttalam Township.
Pacific Angel is a humanitarian and civic assistance program aimed at improving military and civic cooperation between the U.S. and countries throughout the Asia-Pacific region.
This is the fourth and final iteration of Operation Pacific Angel 2010. Operations were previously conducted in the Philippines in February, Vietnam in May, and Bangladesh in June.
© US Air Force
Saturday, August 28, 2010
IMF urges Sri Lanka to broaden tax base
By Mary Swire | Tax-News
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The IMF mission said that overall economic conditions were improving, and the economy was likely to show strong growth this year. End-June performance criteria on domestic budget borrowing, reserve money, and net reserves had been met. With budget revenues increasing and expenditure restraint continuing, fiscal performance so far remained consistent with achieving the government’s full-year deficit target of 8% of GDP. Financial sector reforms continued to go forward in line with the program.
However the IMF thought that significant near- and medium-term macroeconomic challenges would need to be addressed, if Sri Lanka was to take full advantage of the current favorable environment. The IMF said:
“First, a fundamental tax reform is needed, and planned, to simplify the existing system, broaden the tax base (including by restricting concessions), spread the tax burden more equitably, and support economic growth, all while boosting the revenue-to-GDP ratio."
"The resulting fiscal space could allow increased public capital spending on reconstruction and infrastructure as well as social spending to support the vulnerable, but it is clear that the country’s large investment needs cannot be met through the government budget alone."
"Private-sector investment will need to play a critical role. To foster this investment, policies will need to be geared toward preserving macroeconomic stability, ensuring external competitiveness, facilitating capital market development, and improving the investment climate, all of which would lay the basis for higher sustainable growth in a post-war environment."
© Tax-News
Saturday, August 28, 2010
India wants new defence ties with Lanka
Daily Mirror
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This was after talks in New Delhi between a Sri Lankan delegation led by Minister Basil Rajapaksa and a high powered Indian delegation comprising National Security Advisor Shivshankar Menon, Foreign Secretary Nirupama Rao and Defence Secretary Pradeep Kumar.
The Sri Lankan delegation included Defence Secretary Gotabaya Rajapaksa and Presidential Secretary Lalith Weeratunga.
The institutional mechanism of an annual defence dialogue was decided by Prime Minister Manmohan Singh and Sri Lankan President Mahinda Rajapaksa during a meeting in June.
“It is time to look at greater comprehensive cooperation. In this context, we broadly discussed the areas which would be important to focus on in the annual defence dialogue. An earlier visit by the Indian Defence Secretary will help to understand the issues. In the aftermath of the conflict, there is a need for a different defence relationship,” the source said after the high-level India-Sri Lanka talks on Thursday.
He denied that Sri Lanka had approached India for assistance in building the second phase of the Hambantota port. China had undertaken the expansion and modernisation work in the first phase and was understood to have tied up with Sri Lanka for the second phase as well.
India was cautious in its defence ties with Sri Lanka during the conflict and had restricted military assistance to non-lethal aspects such as enhancing the Armed forces' maritime and aerial domain awareness. When Sri Lanka sought arms from other countries including Pakistan, New Delhi enabled Colombo to seal a $300 million armaments deal with its old ally Moscow.
The source said defence was one of the several issues at the table, most of which were a follow-up of decisions taken during Mr. Rajapaksa's recent visit. Both sides also discussed the problems facing fishermen, with India pointing out that killings were unacceptable and that a way had to be found to eliminate this altogether. It was agreed to open channels of communication between fishermen from both countries to understand issues that have sparked violence on the high seas.
Having embarked on building railway infrastructure in Sri Lanka, India has signed most of the contracts and an Export and Import Bank team will shortly complete the arrangements for the $800 million credit for the purpose.
India has completed the hydrological survey of the Kankesanthurai port and will be sending a team to finalise the detailed project report. It is also finalising the tender documents for the modernisation of the Palaly airport.
Sri Lanka said it appreciated the ground covered by India in three months to construct 50,000 houses for the internally displaced people with the pilot project for 1,000 houses set to take off soon.
© Daily Mirror
Saturday, August 28, 2010
Sri Lanka: The last debate on the constitution
By Basil Fernando | Asian Human Rights Commission
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Take for example the question of the constitution. Among the debates of any nation, those on the constitutions would receive the highest place. Not so in Sri Lanka. No one any longer debates the constitution.
The last debate on the constitution was on the 17 amendment. There were many who argued for it and they did so long a long time. Interestingly, no one argued against it. The government’s argument was that it was good piece of legislation but that there were some defects in it. To cure the defect, the government killed the amendment itself; very much like cutting off the arm to save a finger.
In fact, in that last debate on the constitution, the government preferred to bluff rather than to debate. The real problem of the 17th Amendment was that it tried to impose limitations on the power of executive president. The limitations were on his powers to appoint whomever he wished to important positions in the civil service. The government did not agree with having any such limitations and did not wish to debate it. The government made the decision unilaterally and merely created some pretexts for doing do so.
The problem for the government was that it decided that it was not possible to debate on the need to have checks and balances. It was not possible to say that this was a wrong principle. In fact, the government position was that was a wrong principle as far as the government was concerned. The government believes that having no limits to its power is a better principle for governance and that it is impossible to govern Sri Lanka with while trying to abide by the checks and balances principle. Thus, the government believed that this principle was wrong, at least, for Sri Lanka. It had to be abandoned.
However, this was not something that could be said openly as there is almost a universal belief that the principle of having 'checks and balances' is right. To say otherwise, would be tantamount to saying that the law of gravity is incorrect. To debate over the issue of the 17th Amendment was counterproductive. Thus, the only way out was bluff. And that was what the government did.
This example explains the reason as to why there are no longer any debates about the constitution in Sri Lanka. Debates involve principles and there cannot be a debate to reject all the principles on which constitutionalism is based. If one wants to rule in a way that rejects all these principles, then there is no point in debating. Besides, it would be counterproductive to say that our government believes that all principles relating to constitutional law is wrong.
The way out is to create a smokescreen. To have lots of quarrels going on and when you have the monopoly of the media it is easy to do that. The very style of the media in recent years has changed in order to trivialize everything. Trivialization is an essential component of creating quarrels and quarrels are quite an easy way of trivializing any issue.
To have 'no principles' is the very meaning of trivialization. From having shouting matches to some 'jokes' to tickle the audience is what the public get as their daily diet now. There are experts in the job now to keep the show going on.
Soon there will be some major changes in the constitution. However, such changes will not be preceded by any debates. As the proposed amendment is for displacement of limits relating to the president's power a debate will only create problems for the achievement of the government's plans. Indeed the proposed plan cannot be justified on the basis of principles relating to constitutional law. This change will also take place in the midst of some quarrels instead.
This constitutional change will also be introduced as a triviality, though its implications to the country are momentous.
What will this debate-shy society leave as a heritage for future generations?
© AHRC
Saturday, August 28, 2010
Sri Lanka: "Govt may have deliberately shelled civilians and hospitals" says UN Humanitarian Coordinator
By Matthew Russell Lee | Inner City Press
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Inner City Press asked Holmes about criticism of his and the UN's actions in Sri Lanka, for example pulling out of Kilinochchi, funding the internment camps and failing even now to get to the bottom of the murder of the Action Contre La Faim humanitarian workers.
Holmes called this the “ACF massacre,” and said it has still not been explained or even investigated. He did not explain the Kilinochchi pull out, which has been criticized including the International Crisis Group.
He said there's a need to know how many civilians were killed, when it was his OCHA unit which stopped reporting on civilians casualties when one of their reports was leaked to and published by Inner City Press.
Holmes began his answer by referring to the “heavy propaganda claims on both sides.” It was not clear if, beyond side of the the government and “Sinhalese extremists” -- to use Singapore's Lee Kwan Yew's description of Mahinda Rajapaksa -- Holmes meant the LTTE Tamil Tigers, or the Tamil diaspora.
As Inner City Press reported at the time, during Ban Ki-moon's trip to Sri Lanka in May 2009, Holmes during an on the record briefing on the UN plane said that he got lots of email from the Tamil diaspora alleging for example bias by Ban's chief of staff Vijay Nambiar. I just delete it, Holmes said of the e-mail.
Later after complaints, Inner City Press tried to soften the story. But that is what he said. And since he said it, information has emerged about Nambair's still unexplained role in telling LTTE leaders who wanted to surrender to come out with white flags. They were killed, and the leader of the unit which did the killing is now reportedly coming to the UN as Sri Lanka's Deputy Permanent Representative.
Holmes is headed to a think tank of sorts, Ditchley Hall. Perhaps he will write a book -- and perhaps it will address these issues.
© Inner City Press
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