The attempt by the US to work with UN and its Agencies to establish an international mechanism to address accountability is not only a violation of Article 2 (7) of the UN Charter because the UN and its Agencies are not authorised to intervene “in matters which are essentially within the domestic jurisdiction of any member state….”, but also to question the credibility of the domestic mechanism established by Sri Lanka – Pic by Shehan Gunasekara
By Neville Ladduwahetty
The bipartisan House Res. 413 introduced by Congresswoman Deborah Ross (for herself, Mr. Johnson of Ohio, Mr. Danny K. Davis of Illinois, Mr. Sherman, and Ms. Manning) on 18 May was referred to the Committee on Foreign Affairs.
The Preambular Paragraphs contain the background material from which the initiators of Res. 413 resolved on seven issues to be presented to the Foreign Affairs Committee.
These seven issues are presented below:
(1) acknowledges the 12th anniversary of the end of the war in Sri Lanka and offers its deepest condolences to all those affected by the conflict;
(2) honours the memory of those who died and reaffirms its solidarity with the people of all communities in Sri Lanka in their search for reconciliation, reconstruction, reparation, and reform;
(3) commends the United Nations Human Rights Council for prioritising the collection and preservation of evidence related to human rights violations, a process that must not be interfered with by the Government of Sri Lanka;
(4) recognises the bravery and commitment of advocates for justice across all communities in Sri Lanka, including the Tamil families of the disappeared, whose protests and demands for answers have at times been met with threats, intimidation, and harassment by government security forces;
(5) urges the international community to advocate for and protect the political rights and representation of the historically oppressed northeastern region of Sri Lanka and work towards a permanent political solution to address the underlying issues that led to ethnic conflict;
(6) recommends the United States explore investigations and prosecutions pursuant to the recommendations of the United Nations High Commissioner for Human Rights; and
(7) urges the United States to work with the United Nations General Assembly, the United Nations Security Council, and the United Nations Human Rights Council to establish a credible and effective international mechanism for accountability for the grave crimes committed during the war in Sri Lanka.
The Comments presented below are in respect of Resolutions (2); (5); (6); and (7). Resolution (2) is to “honour the memory of those who died…”, Resolution (5) calls upon the international community to “work towards a permanent political solution to address the underlying issues that led to the conflict” and Resolutions (6) and (7) relate to issues of accountability.
Resolution (2) – “memory of those who died”
Comment: While it is customary to honour the memory of those who died during to the armed conflict, it must be acknowledged that those who died are from all ethnic and religious communities. Therefore, it is natural that the practices adopted by different communities would be in keeping with their respective cultural traits. However, an issue that needs to be acknowledged is that it would be unlawful to publicly display symbols of the LTTE during memorialisation procedures in member states that have proscribed the LTTE as a terrorist entity. To permit the display of such symbols is to violate their own provisions under which the LTTE was proscribed.
Resolution (5) – “work towards a permanent political solution…”
Comment: The permanent political solution introduced by Sri Lanka at the behest of India following the Indo-Lanka Accord in 1987 was the 13th Amendment. The fact that the conflict persisted for the next 22 years until May 2009, despite serious attempts to negotiate a permanent political solution within the framework of the 13th Amendment, demonstrates with absolute clarity that the political rights granted under the 13th Amendment fall far short of the expectations of the Tamil people. On the other hand, leaving aside the fact the people of Sri Lanka also opposed the 13th Amendment, fulfilling the aspirations of the Tamil people to the extent they aspire to, is NOT in India’s own national interests because India cannot accept a situation where the Tamil community in Sri Lanka enjoys political rights in excess of what is granted to the Tamil majority in Tamil Nadu. This being the case, India saw to it that a limit to political power to the Tamil people in Sri Lanka was recognised and accepted by the international community during the recently adopted UNHRC Resolution A/HRC/46/L.1/Rev.1 which stated: “Calls upon the Government of Sri Lanka to fulfil its commitments on the devolution of political authority…and to ensure that all provincial councils, including northern and eastern provincial councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”.
India’s External Affairs Minister Dr. S. Jaishankar is reported to have stated during his last visit to Sri Lanka that ‘Delhi insists on the importance of the 13th Amendment in fulfilling the expectations of the Tamil people for equality, justice, peace and dignity’ (The Island, 7 January). Therefore, it could be concluded that as far as India is concerned the 13th Amendment is expected to be the upper limit beyond which a permanent political solution would be unacceptable to India. The rationale for this limit is because the “Stability, security, and prosperity of Sri Lanka is (not only) in India’s interest, but also in the interest of the entire Indian Ocean”, as stated by India’s Prime Minister Narendra Modi during Sri Lanka’s Prime Minister Mahinda Rajapaksa’s visit to India.
The observations of a former President of India, Pranab Mukherjee in his autobiography is of extreme importance. He opined that bilateral ties between India and Sri Lanka had been “greatly influenced by Tamil politics in India, particularly with the emergence of a strong Dravidian party (DMK) in Tamil Nadu since the mid-60s”. Continuing, the report also states “on the concept of Tamil Eelam the former President observed that it was raised by ‘the Tamil population residing on both sides of the Palk Strait…” (Daily News, 11 January).
The perspective presented by the Tamil diaspora is that a political solution based on a federal arrangement with the right of self-determination, is realistically achievable. The hard reality is that such an arrangement is unacceptable not only to the people of Sri Lanka but also to Delhi because any political arrangement beyond the 13th Amendment would impact on the security and territorial integrity of both States. Now that the DMK who supported the aspirations of the Tamils in Sri Lanka is back with a majority in the State Assembly of Tamil Nadu, not only Sri Lanka but also Delhi is deeply concerned that the initiative taken by Res. 413 for a political solution to meet Tamil expectations in Sri Lanka would impact seriously on the security and stability in respect of India’s territorial integrity and that of Sri Lanka as well. Hence, the insistence by Delhi of the importance of the 13th Amendment. Furthermore, any arrangement beyond the 13th Amendment that would have serious implications on the territorial integrity of India would impact on the ability of India to be play an effective role as a member of the Quad that is intended to partner with the US in the security of the Indo-Pacific.
Resolution (6) – “US to explore investigations and prosecutions pursuant to the recommendations of the UN High Commissioner for Human Rights”
Comment: Since the Res. 413 is influenced by the recommendations of the High Commissioner for Human Rights, it is pertinent that the Resolution pays particular attention to recommendations in Paragraphs 182 and 183 in the Report of the Office of the High Commissioner for Human Rights on Sri Lanka (OISL).
Paragraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka” AND Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.
Since Common Article 3 of the Geneva Conventions have been expanded and incorporated as Additional Protocol II of 1977 applicable to Non-International Armed Conflict and ratified by 168 Member States as of 2020, the conduct of the conflict in Sri Lanka should be evaluated in the context of an Armed Conflict under provisions of Additional Protocol II of 1977. Thus Additional Protocol II should be included within the body of Customary International Law, and any investigations and prosecutions the US intends to explore, should follow the guidelines in Additional Protocol II.
Resolution (7) – The US to work with the UNGA, Security Council and UNHRC to establish an international mechanism to address accountability
Comment: For the US to work with three organs of the UN namely the General Assembly, the Security Council and the UNHRC is a direct violation of Article 2 (7) of the Charter of the United Nations.
Article 2 (7) states: “Nothing contained in the present Charter shall authorise 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…”
The need for Resolution (7) is perhaps because of the prejudice against the domestic mechanism established by the Government of Sri Lanka. In order to convey its credibility key provisions of the mandate of the Presidential Commission of Inquiry as per Gazette No. 2211/55 of 21, January, 2021 is presented below.
“Whereas the decision taken by the Government of Sri Lanka to withdraw from co-sponsorship of 40/1 Resolution on March 2019 on Reconciliation, Accountability and Promotion of Human Rights in Sri Lanka and its preceding resolution 30/1 of October 2015 and 34/1 of March 2017 has been announced at the 43rd session of the United Nations Human Rights Council on 26th and 27th of February 2020”…
“appoint you Hon A.H.M.D. Nawaz Esq, Judge of the Supreme Court; Chandra Fernando Esquire, Retired Inspector-General of Police; Nimal Abeysiri, Retired District Secretary, to be my Commissioners to investigate and inquire and take necessary action to report on the following matters, namely –
(a) Find out whether preceding Commissions of Inquiry and Commissions which had been appointed to investigate into human rights violations have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences;
(b) Identify what are the findings of the said Commissions and Committees related to the serious violations of human rights, serious violations of international humanitarian law and other such offences and whether recommendations have been made on how to deal with the said facts;
(c) Manner in which those recommendations have been implemented so far in terms of the existing laws and what steps need to be taken to implement those recommendations further in line with the present Government policy;
(d) Overseen of whether action is being taken according to (b) and (c) above”.
Further, I do hereby authorise and empower you, the said Commissioner, to cause or cause the conduct of necessary investigations and inquiries and require you to transmit to me Interim Reports where necessary and the final Report within six months of the date hereof…”
The key intentions of US House Res. 413 are to work towards a permanent political solution to address underlying issues that led to the conflict (Resolution 5) and to address issues relating to accountability (Resolutions (6) and (7).
In the background of India insisting on the importance of the 13th Amendment as the means to address concerns of the Tamil people, the attempt by the US to explore fresh political arrangements is to engage in efforts that run counter to the geopolitical and strategic interests of one of the key partners of the security alliance of Quad.
Furthermore, this attempt by the US ignores the rationale for India to initiate the Indo-Lanka Accord judging from the statement made by Prime Minister Rajiv Gandhi. He stated that the Accord had “Prevented the island nation from coming into the orbit of some superpower trying to tighten their hold in Sri Lanka on the pretext of helping to find a solution to the four year old ethnic conflict” (Kodikara, p.147, Indo-Sri Lanka Agreement). As far as India is concerned US Res.413 is nothing but an attempt to get a “hold in Sri Lanka” as warned by a former Prime Minister, even though India is with the Quad security alliance.
As for addressing issues relating to accountability, any intended action should be cognisant of the fact that from February 2002 until May 2009 the conflict was a non-international armed conflict and therefore applicable provisions of Additional Protocol II that are based on Common Article 3 of the Geneva Conventions should govern any investigations and prosecutions; a fact endorsed by the Office of the High Commissioner for Human Rights (OISL).
The attempt by the US to work with UN and its Agencies to establish an international mechanism to address accountability is not only a violation of Article 2 (7) of the UN Charter because the UN and its Agencies are not authorised to intervene “in matters which are essentially within the domestic jurisdiction of any member state….”, but also to question the credibility of the domestic mechanism established by Sri Lanka.
In summary, House Res. 413 appears to be more of an attempt to please its promoters, and in the process the drafters of the Resolution have failed to recognise broader geopolitical ramifications of their proposals and have even gone to the extent of ignoring the fundamentals such as violating the provisions of the UN Charter itself.