By Kalana Senaratne
Numerous reports suggest that Dr. Jayantha Dhanapala had some interesting things to say when he appeared before the Lessons Learned and Reconciliation Commission (LLRC) recently; about aspects relating to the interference of certain States in the internal affairs of other States; about the R2P concept; about the Sri Lankan Armed Forces carrying out a daunting humanitarian operation, saving 300,000 innocent civilians kept as a human shield by the LTTE and thereby preventing a certain ‘holocaust’ (The Daily News, 26 August 2010; The Ministry of Defence (defence.lk), 25 August 2010)
Jayantha Dhanapala and UN Secretary-General Ban Ki-moon ~ pic: http://www.pugwash.org
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)