Domestic mechanisms to address accountability

Governments must request the UNHRC to furnish the evidence that it has, in order to enable a Domestic Court to address issues of accountability for the sake of those that gave their full measure of devotion towards making the country whole and its people safe and for the dignity and self-respect of Sri Lanka

By Neville Ladduwahetty

With the start of the UN Human Rights sessions in Geneva on 22 February, several commentators have expressed opinions as to how Sri Lanka should address the issues raised in the Report of the UN High Commissioner for Human Rights. Others, some with extremely impressive credentials, have been more specific and confined themselves to issues relating to accountability. 

The prevailing perception is that domestic legal provisions are inadequate to address issues relating to accountability applicable to the armed conflict in Sri Lanka that ended in May 2009. Furthermore, this perception is reinforced by the belief that Sri Lanka is not in a position to avail itself of international provisions relating to armed conflict, not only because Sri Lanka has not been a signatory to such instruments, but also because even those that Sri Lanka was a signatory to have not been incorporated into domestic law; a requirement imposed by the dualist system that Sri Lanka is committed to. 

For instance, according to this latter perception the provisions in Additional Protocol II of 1977 that are applicable to Non-International Armed Conflict cannot be applied to the Non-International Armed Conflict in Sri Lanka because Sri Lanka is not a signatory to this Protocol. This perception is seriously flawed because it fails to accept the provision in the second paragraph of Article 13 (6) in Sri Lanka’s constitution that recognises the principle that laws recognised by the “community of nations” have a relevance that cannot be ignored in domestic jurisprudence. 

Law recognised by the community of nations

Article 13 (6) states:

“(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”

Therefore, an act that did NOT constitute an offence under domestic law could be a “criminal” act according to the “general principles of law recognised by the community of nations”, where an accused could be tried and punished. 

The principle of giving recognition to “general principles of law recognised by the community of nations” is also incorporated in Article 38 of the Statutes of the International Court of Justice (ICJ). Article 38 states:

“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

c. the general principles of law recognised by civilised nations”.

As far as issues of accountability during an armed conflict are concerned, general principles of both International Humanitarian Law (IHL) and International Human Rights Law (IHRL), subject to derogation, are recognised by the community of nations as part of the body of international law. International Humanitarian Law embodies laws that govern both International and Non-International Armed Conflicts. The source of these laws are the four Geneva Conventions of 1949. They are universally accepted by the community of nations as the laws that govern Armed Conflict. Article 3 that relates to Non-International armed conflict are common to all four Geneva Conventions, hence it is often referred to as “common article 3 of the Geneva Conventions”. 

Since the four Geneva Conventions are universally accepted by the community of nations as laws that govern armed conflict, and Article 3 is common to all four, it must necessarily follow that Article 3 is also universally acceptable to the community of nations. Furthermore, because one Article was found to be inadequate to address the complexities of numerous non-international armed conflict that sprang up following decolonisation after World War II, a body of experts developed Additional Protocol II in 1977. Therefore, since the Additional Protocol is an extension of common Article 3, Protocol II Additional to the Geneva Conventions should ipso facto be part of the body of laws acceptable to the community of nations. This makes common Article 3 and by extension Additional Protocol II of 1977 acceptable to the community of nations. And because of it, Additional Protocol II of 1977 should be the basis to address accountability issues relating to Sri Lanka’s Armed Conflict. 

Its full title is:

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)

Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts

Entry into force: 7 December 1978, in accordance with Article 23 

Additional Protocol II to address accountability

Since the text of the Protocol in respect of acts that are prohibited during a non-international armed conflict are similar to common Article 3, addressing issues of accountability based on the provisions of the Additional Protocol II is justified and therefore should be acceptable to the community of nations. The relevant sections of each are presented below. 

Common Article 3

“To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples”.

Part II of the Additional Protocol states: 1. “All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors”. 2. “Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: 

(a) Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) Collective punishments;

(c) Taking of hostages;

(d) Acts of terrorism;

(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) Slavery and the slave trade in all their forms;

(g) Pillage;

(h) Threats to commit any of the foregoing acts.”

In view of the prohibited acts listed above it is pertinent to ascertain whether a person found guilty of having committed any of the acts listed above could be punished under existing provisions of Sri Lanka’s Penal Code. If current provisions of the Penal Code are in fact sufficient to address violations alleged to have been committed during the final stages of Sri Lanka’s Armed Conflict, there is nothing to prevent Sri Lanka from undertaking such an exercise provided the procedure laid out in Article 6 “Penal prosecution” of the Additional Protocol II of 1977 is followed. This Article is presented below:

Scope of Sri Lanka’s Penal Code

Judging from the nature of the alleged violations committed by the security forces, particularly during the final stages of the armed conflict, the appropriate section of Sri Lanka’s Penal Code would be in Chapter XVI titled “Of offences affecting the human body and of offences affecting life”. A few of the offences listed in this Chapter are:

(a) Culpable homicide and murder;

(b) Grievous hurt and voluntarily causing hurt;

(c) Wrongful restraint and wrongful confinement;

(d) Criminal force and assault;

(e) Kidnapping, abducting and serfdom and slavery and recruitment of children for use in armed conflict;

(f) Rape and grave sexual abuse.

In addition to the broad scope of offences presented above, the Penal Code lists a range of offences that expand the scope beyond the narrow limits of the list presented. 

It is therefore self-evident that the Penal Code in its current form would be sufficient to address issues of accountability based on the nature of violations alleged to have been committed by the Security Forces, provided the procedure outlined in Article 6 of the Additional Protocol of 1977 is followed which in essence is: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence.”

Additional Protocol II of 1977

Article 6 – Penal prosecutions

1. This Article applies to the prosecution and punishment of criminal offences related to the armed conflict. 

2. No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.

In particular:

(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;

(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;

(c) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved guilty according to law;

(e)Anyone charged with an offence shall have the right to be tried in his presence; (f) No one shall be compelled to testify against himself or to confess guilt. 

3. A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised. 

4. The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children. 

5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained. 

Conclusion

UNHRC Resolution 30/1 that was co-sponsored by the former Sri Lanka Government was of the view that accountability could be addressed only by establishing “a judicial mechanism with a special counsel that included the special counsel’s office of Commonwealth and other foreign judges, defence lawyers, etc…” (Paragraph 6). This view is endorsed by those who have doubts about the competence of the existing law and order system to address issues of accountability in a credible manner.

Instead, of adopting the arrangement proposed in Resolution 30/1, what is proposed herein is that accountability is addressed using laws recognised by the community of nations, starting with the Geneva Conventions that are universally acceptable. Furthermore, Article 13 (6) of Sri Lanka’s constitution also gives special recognition to principles of law recognised by the community of nations. 

More specifically, what is relevant to Sri Lanka is common Article 3 applicable to Non-International Armed Conflict. This single Article was found to be inadequate to address the complexities of internal conflicts that sprang up with decolonisation following the conclusion of World War II. This resulted in common Article 3 being expanded in scope and adopted as “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)

The logic that follows is that if Geneva Conventions are accepted by the community of nations, then it must follow that common Article 3 of the Geneva Conventions and its extension in the Protocol Additional to the Geneva Conventions should also be acceptable to the community of nations, regardless of whether it was ratified by a State or not. Furthermore, Article 38 of the Statutes of the International Court of Justice base their judgments on “the general principles of law recognised by civilised nations”.

Based on this logic what is proposed herein is that the entire exercise of addressing accountability should be based on the provisions as laid out in the Protocol Additional to the Geneva Conventions applicable to Non-International Armed Conflict as had occurred in Sri Lanka. Since the Protocol specifies acts that are prohibited during a Non-International Armed Conflict and Sri Lanka’s Penal Code also identifies similar acts as criminal, no barrier should exist to address issues of accountability under existing judicial arrangements and provisions of law, provided the procedures adopted are those outlined in Additional Protocol II of 1977. 

The two provisions of Article 6 of the Additional Protocol II that should be followed are that: “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”, and that: “the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence”.

Although the focus thus far has been on the composition of the Court as to whether it is a hybrid as proposed in UNHRC Resolution 30/1, or a Sri Lankan Court, the prosecution of any one guilty of violations of humanitarian or derogated human rights laws would depend on the evidence presented. This evidence together with part of it sequestered for thirty (30) years is with the Office of the High Commissioner for Human Rights. Therefore, regardless of the composition of the Court no accountability exercise could proceed without access to this evidence. It is this evidence that the UNHRC found sufficiently convincing to declare that war crimes and crimes against humanity were committed. 

Therefore, since Part 6 of the Protocol requires the accused “to be informed…of the offence” it is crucial that the UNHRC provides access to the evidence in its possession so that a Court could address issues of accountability. It should be left to the discretion of the Court to decide which evidence warrants investigation. Such a procedural approach is in keeping with the procedures adopted by the International Criminal Court. If the UNHRC fails to comply, they would not only be in violation of fundamental principles of natural justice but also be in violation of a vital provision of Additional Protocol II recognised by the community of nations. 

It is time governments give serious consideration to this proposal and request the UNHRC to furnish the evidence that it has, in order to enable a Domestic Court to address issues of accountability for the sake of those that gave their full measure of devotion towards making the country whole and its people safe and for the dignity and self-respect of Sri Lanka.