UN Secretary General's Expert Group to assess Accountability in Sri
Lanka
It is reported that the UN Secretary-General (UNSG) had expressed
"....concerns over the lack of progress on political reconciliation, the
treatment of internally displaced persons (IDPs)and the setting up of an
accountability process in Sri Lanka." The report adds that the UNSG
"..intends to move forward on a group of experts which will advise....on
setting broad parameters and standards on the way ahead on establishing
accountability concerning Sri Lanka" (The Island, March 10, 2010).
The joint statement signed between the UN and the Government does not
set out a time frame to assess "progress" on these three issues, and
very correctly so in view of their very nature. For instance, political
reconciliation involves not only the Government but the other political
parties including minority parties, since reconciliation of any kind is
not unilateral. And with the alignment of political forces in readiness
for the forthcoming Parliamentary elections, political reconciliation
must necessarily await the emergence of fresh political leaderships with
new strengths and new agendas with which to forge solutions that would
foster political reconciliation. Therefore, "moving forward on a expert
group" to advise the UNSG until the needed dynamics are in place, is
premature.
With regard to the second issue of IDPs, India's Foreign Secretary,
Nirupama Rao on her recent visit just last week said she was satisfied
with the "progress" made by Sri Lanka. In fact she is reported as
stating that Sri Lanka had "made considerable success in resettling IDPs
and that "this issue had now gone away from the attention of the
international community"(Daily Mirror, March 8, 2010).
Therefore, of the three issues of concern to the UNSG, the issue of
political reconciliation would have to await new political formations in
Parliament, and the issue of IDPs is a non-issue, an assertion coming
from an international diplomat whose credentials surpass those of
experts sent by the UN, judging from past experiences. This leaves only
the single issue of an "accountability process in Sri Lanka".
Issue of accountability
The obvious question is: "Accountable to whom or what"? Is it to the
community of nations represented by the UN, or to its Secretary General?
If it is to the latter, the UNSG has no authority to do so unless it is
the wish of the entire assembly, which incidentally is not the case. In
the case of Sri Lanka the UNSG has decided to be selective and pick Sri
Lanka for reasons best known to himself. This is what makes it
unacceptable because the UNSG has no authority to be selective. If on
the other hand, he is initiating action on behalf of the UN assembly, he
has to initiate action in respect of other countries for actions in Iraq
and Afghanistan since the UN Charter is based on the "principle of
equality of all its Members".
This concept is recognized in Article 2 (1) of the CHARTER OF THE
UNITED NATIONS (1945) which states: "The Organization is based on the
principle of the sovereign equality of all its Members". Furthermore,
Article 2 (7) states: "Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application
of enforcement measures under Chapter VII".
The issue of enforcement under Chapter VII has no relevance because
this Chapter relates to "Action with respect to threats to the peace,
breaches of the peace, and acts of aggression" none of which exist at
this point in time in Sri Lanka. On the other hand, acts of aggression
exist in Afghanistan. Therefore, the UNSG has every right to invoke the
provisions of the Charter in regard to this conflict. However, this is
not the case with Iraq.
Aggression in Iraq was initiated on false premises, by invading a
member state during which over a million men, women and children
perished and over four and a half million persons were displaced. If an
assessment of accountability is to be initiated there is no case more
deserving of such an investigation by the community of nations, than
Iraq. But since some states are more sovereign and equal than others no
such action would be initiated by any UNSG. Under the circumstances, the
only protection the rest that are numerically more, such as Sri Lanka
possess is to initiate a resolution to prevent the UNSG from resorting
to unilateral action without the sanction of the entire Assembly when it
comes to accountability issues relating to matters within a nation's
domestic jurisdiction.
In the meantime, the UN High Commissioner for Human Rights is
reported to have presented a report to the Council stating that "she is
convinced that Sri Lanka should undertake a full reckoning of the grave
violations committed by all sides during the war, and that the
international community can be helpful in this regard" (The Sunday
Times, March 7, 2010). Whether such an investigation would be helpful to
Sri Lanka is a matter for Sri Lanka to decide. Furthermore, the High
Commissioner should realize that Sri Lanka has the capability to handle
such a "reckoning" without international help, should Sri Lanka decide
that it would be in her best interest to do so.
There is however a role for the international community with regard
to containing violations during conflicts of a non-international
character, particularly because such conflicts are what threaten global
peace as recognized by US Defense Secretary Gates. Conflicts of a
non-international nature are governed by Additional Protocol II of 1977.
Such conflicts do not have guidelines similar to the four Geneva
Conventions of 1949. Just as much as Article 3 in these Conventions was
expanded due to the inadequacy of one article to cover non-international
conflicts resulting in the formulation of Additional Protocol II of
1977, there is much valuable work to be done by the international
community to provide guidelines concerning the conduct during
non-international or unconventional conflicts which come within the
domestic jurisdiction of member states.
For instance, the Geneva Conventions give guidelines in the case of
combatants surrendering to an opposing army. But no such guidelines
exist in the case of suicide bombers, as it was the case with the LTTE;
a practice that is being copied by others engaged in non-international
conflicts in Afghanistan, Pakistan and Iraq. If a suicide bomber decides
to hide behind a white flag is he/she entitled to the same treatment as
a regular soldier, even if a weapon is surrendered? And even if a weapon
is surrendered, what guarantee is there that a suicide device is not
kept hidden? What additional precautions can be taken in the case of a
suicide bomber, and how can a suicide bomber be identified from a
regular soldier. Another is the forcible use of civilians as a human
shield; a practice that was exploited by the LTTE in Sri Lanka, and is
now practiced in Afghanistan/Pakistan. It is evident from the foregoing
that there is much productive work that the UNSG, UN High Commissioners
and other international experts could engage in, such as developing
guidelines in order to prevent violations and protect civilians during
conflicts, without engaging in accountability exercises after the fact.
Another issue is the confusion as to what constitutes "crimes against
humanity" versus "war crimes". Neither is specifically addressed by the
Geneva Conventions or the Protocols to the degree it is addressed in the
Rome Statute of the International Criminal Court. Therefore, the High
Commissioner and his/her staff supported by experts would be making an
invaluable contributions bring clarity to these issues instead of
responding to pressures brought on by parties motivated by parochial
interests.
Conclusions
Instead of attempting to set up an accountability process in Sri
Lanka we wish to urge the UNSG and the UN High Commissioner for Human
Rights to use experts to develop guidelines for the benefit of member
states to use in the case of conflicts of a non-international nature.
Such guidelines should cover the issues relating to civilians in
conflict, 'safe zones' and how they are to function, etc., so that they
are not abused, as well as how to deal with suicide bombers and their
rights as an absolute minimum.
The fact that the UN has failed to address these pressing issues
reflects poorly on the priorities set by the UN and its staff. This is
evident from the fact that after the Geneva Conventions of 1949 and the
Protocols of 1977, no meaningful action has been taken in the last 33yr
to provide guidelines to member states. If sincere and credible efforts
are to be exerted to make the world a safer place, the UN has to stop
catering to pressure groups and their narrow agendas, and set itself an
accountability process within the UN itself in its pursuance of
contributing towards improving the human condition.
Courtesy : The Island
-The Ministry of Defence bears no responsibility for the ideas and opinion expressed by the numerous contributors to the “Opinion Page” of this web site-
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