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Accountability for Violations of International Humanitarian Law (IHL) in Counterinsurgency: The ...

Feb 27, 2011 1:26:41 PM- transcurrents.com

This Live Seminar examined mechanisms and strategies to promote accountability for IHL violations committed during counterinsurgencies, focusing on the case of Sri Lanka. Against the backdrop of domestic and international efforts to address IHL violations committed during the counterinsurgency in Sri Lanka, this Live Seminar addressed the following questions:


What aspects, if any, of counterinsurgency doctrine have the potential to affect adherence to IHL principles?

What accountability mechanisms—judicial or otherwise—exist regarding IHL violations committed during non-international armed conflicts?

What accountability mechanisms are currently being implemented, and what potential mechanisms are under consideration?

What legal and political challenges arise in the context of multiple, simultaneous accountability mechanisms aimed at addressing the same counterinsurgency situation?

What role, if any, should humanitarian actors play in promoting adherence to international norms in counterinsurgency situations?

These questions will be examined by reference to the situation in Sri Lanka.

Presentation Transcript

Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University
Accountability for Violations of IHL in Counterinsurgency:

The Case of Sri Lanka
February 24, 2011

Mr. Claude BruderleinDirector
Program on Humanitarian Policy and Conflict Research at Harvard University

Ms. Naz Modirzadeh
Associate Director
Program on Humanitarian Policy and Conflict Research at Harvard University


Jon Lee Anderson
The New Yorker

Ambassador Dr. Palitha T.B. Kohona
Permanent Mission of Sri Lanka to the United Nations

Sam Zarifi
Amnesty International

Alan Keenan
International Crisis Group

Jon Lee Anderson began contributing to The New Yorker in 1998 and became a staff writer in 1999. He has reported frequently from Iraq and has covered the conflicts in Afghanistan, Angola, and Lebanon. He recently authored an article titled “Death of the Tiger: Sri Lanka’s brutal victory over its Tamil insurgents.”

Anderson is the author of several books, including “The Lion’s Grave: Dispatches From Afghanistan,” “Che Guevara: A Revolutionary Life,” “Guerrillas: Journeys in the Insurgent World,” and, most recently, “The Fall of Baghdad.” He is the co-author, with Scott Anderson, of “War Zones: Voices from the World’s Killing Grounds,” and “Inside the League.”

Born in California, Anderson was raised and educated in South Korea, Colombia, Taiwan, Indonesia, Liberia, England, and the United States. He currently lives in Dorset, England.

Dr. Palitha T.B. Kohona served as the Secretary to the Ministry of Foreign Affairs of Sri Lanka until his appointment as Permanent Representative to the United Nations in New York. Prior to this he served as the Secretary-General of the Secretariat for Coordinating the Peace Process (SCOPP) established by the Government of Sri Lanka.

Dr. Palitha Kohona received his secondary education in Sri Lanka at St. Thomas College, Mt. Lavinia. He proceeded to obtain a LL.B (Hons) at the University of Sri Lanka and a LL.M from the Australian National University. He obtained a Doctorate from Cambridge University, UK, for the thesis – ‘The Regulation of International Economic Relations through Law’, subsequently published by Kluwer, Netherlands. He is also an Attorney-at-Law, Supreme Court of Sri Lanka.

Dr. Kohona was a member of the Sri Lanka delegation to the UN General Assembly in 2006 and 2008. He has led official level delegations to a range of countries on bilateral matters. During his tenure as the Secretary-General of the Government Peace Secretariat (2006), he participated in several rounds of peace negotiations with the LTTE in Geneva and led the delegation to talks in Oslo. From 1995-2006 He served as the Chief of the Treaty Section, Department of Legal Affairs of the UN.

Sam Zarifi is Amnesty International's Asia-Pacific Director. Prior to joining AI in 2008, he was with Human Rights Watch for eight years, where he served as the Asia Deputy Director and later as the Washington Advocate, covering the Middle East, Africa and Asia. He has conducted research missions focusing on conflict situations in Afghanistan, Iraq, the Philippines, and Nepal, and has worked on conflict conditions in a number of Asian countries, including India, Indonesia, Pakistan, Sri Lanka, and Thailand.

He was born and raised in Iran. He received a Bachelor of Arts degree and a Juris Doctor degree from Cornell University, and an LL.M. in International Law from NYU School of Law. He practiced law as a corporate litigator in Los Angeles before serving as Senior Research Fellow at the International Law faculty of Erasmus University Rotterdam, where he was co-editor (with Prof. Menno Kamminga) of Liability of Multinational Corporations under International Law (Kluwer 2000) and several articles on corporate responsibility.

Why the LLRC Falls Short

States should recognize that “retributive” justice and “restorative” justice (i.e. criminal justice and truth-seeking mechanisms) do not exclude, but supplement each other.

Amnesty International has analysed the practice with respect to criminal prosecutions and amnesty of the 40 truth commissions established around the world between 1974 and2010. It concludes that:

“Retributive” justice and “restorative” justice (i.e. criminal justice and truth-seeking mechanisms) do not exclude, but supplement each other.

The establishment of truth commissions (commissions of inquiry tasked with the investigation of patterns of past crimes) has sometimes been suggested as an alternative to the investigation and prosecution of crimes under international law before national courts.

Although an effective truth commission can go a long way to satisfying a state’s obligation to respect, protect and promote the victims’ right to truth, there is no alternative to investigation and prosecution of crimes under international law.

The practice of truth commissions strongly supports the prosecution of crimes under international law. The practice of the majority of truth commissions is firmly in favour of investigations and prosecutions of all crimes under international law: more than half of the truth commissions with relevant practice recommended and/or actively contributed to the prosecution of all crimes under international law.

Sam Zarifi
Crimes under International Law/ICC

Some points about potentially applicable crimes under international law:

-genocide: when acts are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

-crimes against humanity are “committed as part of a widespread or systematic attack directed against any civilian population.” They can include acts such as:

• murder
• extermination
• forcible transfer of population
• imprisonment
• torture
• rape
• other forms of sexual violence
• persecution against any identifiable group or collectivity
• enforced disappearance of persons
• other inhumane acts of a similar character intentionally causing great suffering,or serious injury to body or to mental or physical health

--war crimes are grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in armed conflicts. War crimes are committed in the context of armed conflict. Some war crimes are specifically linked to internal armed conflict – such as civil war – and others are linked to international armed conflict. But most war crimes can occur in both situations.

War crimes in internal armed conflicts (such as in Sri Lanka) include acts such as

• violence to life and person, in particular murder of all kinds;
• mutilation, cruel treatment and torture;
• outrages upon personal dignity, in particular humiliating and degrading treatment;
• taking of hostages;
• conscripting and enlisting children under the age of fifteen years
International law also lists other criminal acts, such:
• intentionally directing attacks against the civilian population or civilian objects;
• intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission;
• killing or wounding a combatant who, having laid down his arms or having no further means of defence, has surrendered..

Under international law, such acts can be war crimes even if they are not committed as part of a systematic or widespread attack on civilians, but if they are only rare or sporadic. However, according to the Rome Statute, “the [ICC] shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”.

Sam Zarifi
Command Responsibility

Command responsibility applies to

(1) Military officers OR civilian officials with direct authority (such as a civilian commander in chief) who knew or should have known about atrocities committed by a subordinate and failed to take action, plus, in some restrictive readings,

(2) Civilian officials with direct authority but not in the military chain of command who directly ordered an atrocity (the Rome Statute reached a political compromise to avoid responsibility of civilian officials who didn’t have direct knowledge).

An individual found to have command responsibility for the crime committed by a subordinate is deemed equally culpable as the subordinate; that is, if the officer stood by while the subordinate committed murder, the officer is also guilty of murder.

Sam Zarifi
Universal Jurisdiction

Universal jurisdiction is the ability of a State’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals (i.e. a crime beyond other bases of jurisdiction, such as territoriality or active/passive personality).

Applies to a number of crimes under international law including war crimes, torture, crimes against humanity, genocide, piracy, hijacking, acts of terrorism, and attacks on UN personnel.

Universal jurisdiction is obligatory under a number of international treaties, including:
the Geneva Conventions and the 1984 Convention against Torture, to both of which Sri Lanka is a state party.

Amnesty International’s Publications

AI's report on failure of ad hoc commissions of inquiry in SL ("Twenty Years of Make Believe"): http://www.amnesty.org/en/library/asset/ASA37/005/2009/en/c41db308-7612-4ca7-946d-03ad209aa900/asa370052009eng.pdf

AI's position regarding the LLRC in Sri Lanka: http://amnesty.org/en/news-and-updates/international-inquiry-needed-address-alleged-war-crimes-sri-lanka-2010-10-14 AI's analysis of universal jurisdiction practice: http://www.amnesty.org/en/library/asset/IOR53/015/2010/en/ba497b37-79b6-40d5-b81f-745631bc2ed9/ior530152010en.html

AI's report on experience of Truth and Reconciliation commissions around the world: http://www.amnesty.org/en/library/asset/POL30/004/2010/en/1f74d7de-f82d-4942-8b3a-a5f8f7858d77/pol300042010en.pdf

Alan Keenan is the Senior Analyst and Sri Lanka Project Director for the International Crisis Group, based in London. Prior to joining the Crisis Group, he was a Visiting Scholar at the University of Pennsylvania’s Solomon Asch Center for Study of Ethnopolitical Conflict and was from 2003-5 a Mellon Postdoctoral Fellow in Peace and Conflict Studies at Bryn Mawr College, where he taught courses on human rights, conflict, democratization, and transitional justice.

Before coming to Bryn Mawr, Alan spent much of the previous four years in Sri Lanka as a Visiting Fellow at the International Centre for Ethnic Studies, Colombo. In addition to his academic research, Alan has also worked as a consultant for the Programme on Human Rights and Conflict at the Law and Society Trust in Colombo and with the International Centre for Transitional Justice in New York.

Alan received his PhD in political theory from the Johns Hopkins University, and has taught political, legal, and social theory at the Universities of California at Berkeley and at Santa Cruz, and in the Committee on Degrees in Social Studies at Harvard University. He is the author ofDemocracy in Question: Democratic Openness in a Time of Political Closure (Stanford Univ. Press, 2003), as well as articles on both political theory and on Sri Lankan politics in various academic journals and edited volumes.

His academic work has focused on the activities of local and international NGOs in the context of Sri Lanka’s quarter century civil war. He is currently working on a manuscript entitled “Between the Devil and the Deep Blue Sea: The Politics of Human Rights and Peacebuilding in Sri Lanka.”
The Politics of domestic and international accountability options

1. The need for an international investigation

2. The domestic option – the “Lessons Learnt and Reconciliation Commission” (LLRC)3. Sri Lanka’s long history of failed commissions and impunity

4. Beyond ‘war crimes’ – the need for a broader framework for international advocacy on accountability in Sri Lanka5. Truth and reconciliation6. The Secretary General’s panel of experts7. Repudiating the ‘Sri Lanka Option’: beyond the critique of double-standards

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For more materials on this Live Seminar, see its resource page at the International Humanitarian Law Research Initiative Portal.