Its meaning and the need for a different approach
By Daya Gamage
It has been reported that Sri Lanka is expected to lobby the support of friendly US congressmen to defeat a resolution tabled in the House of Representatives on September 07 by seven congressmen demanding an international inquiry into alleged violations of the international humanitarian law during the military battle against the separatist/terrorist Tamil Tigers in Sri Lanka.
Our concern here is not the contents of House Resolution 177 but the strategy Sri Lanka could deploy, a strategy different to what the country and its diplomatic post in Washington deployed in the past to change the mind-set of the American legislators who were highly critical of Sri Lanka’s human rights record.
One strategy we saw was the lobbying of the US Senators through the Sri Lanka funded Washington lobbying firm to change this mind-set, a mind-set conditioned by the heavy propaganda of the pro-separatist/Tamil Tiger lobbyists in Washington and New York.
The pro-separatist/Tiger lobby was very successful in influencing the American lawmakers. The culmination of the ‘outrages claims’ against Sri Lanka by the Tamil Tiger lobby is House resolution 177.
We saw the result in the lobbying of US Senator Bob Casey when he as recently as June said that the final victors in Sri Lanka’s war against the Tamil Tigers were the Sinhalese, and this sentiment was expressed as a going away gift to Michele J. Sison who came before Mr. Casey’s foreign relations committee for confirmation as the new American ambassador to Sri Lanka.
Western nations, prominently led by the United States, since the defeat of the LTTE in May 2009 have systematically sharpened their maneuvers to first, strategically communicate to the rest of the world that the Government of Sri Lanka (GSL) was responsible for violating the International Humanitarian Law and globally-accepted human rights practices to whip up anti-Sri Lankan sentiments in Western capitals and among the lawmakers, and two, to create a voice to force the United Nations to bring Sri Lanka to international scrutiny preparing the path to prosecute its leaders for crimes against humanity, human rights abuses, war crimes and genocide at the international court. The House resolution is the culmination of that effort.
How much of the following scenario has been presented to the US lawmakers in an attempt to establish a mind-set that Sri Lanka was engaged in a ‘legitimate struggle’ to safeguard her territorial integrity and sovereignty?
Article 3 of Protocol II of the Geneva Convention gives the State the right to restore law and order, and the internal conflict cannot be taken as a justification for outside intervention. During the onslaught by the Tamil Tigers, Sri Lanka was conscious of what it was engaged in upholding the provision which is:
1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.
2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.(End Article 3 of Protocol II)
Both Common Article 3 and Protocol II can apply simultaneously to a conflict, providing the minimum amount of protection. However, Protocol II provides a much greater substantive protection, introducing new fundamental rules concerning the protection of civilians against the effects of hostilities, as well as protection of medical personnel and transport.
Article 1 of Protocol II
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. (End of Articles 1 & 2 of Protocol II)
We would like to bring attention to the final three lines of Article 1 to highlight the applicability of this portion of international law to violent atrocities the of the Tamil Tigers. The relevant section reads: “armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.
While Common Article 3 does not provide a definition of “non-international armed conflict”, Article 1 of Protocol II, clarifies that the Protocol applies to armed conflicts which take place (1) in the territory of a State Party to the Protocol, (2) between its armed forces and ANSAs which (a) are organized under a responsible command (b) exercise control over part of its territory, (c) are able to carry out continuous and intensive military operation and to implement the Protocol.The above description fits well to the armed conflict between the GSL and LTTE, and the controlling authority the LTTE possessed during the conflict.
In dealing with the US House of representative resolution the US lawmakers need to be convinced of the legitimacy of the Sri Lanka military operation and that the legitimate authority, meaning Sri Lanka armed forces, according to the international law has the right to engage in a battle with the Armed Non State Actor (ANSA) who are directing its fire power taking cover behind the civilian population.
A different approach to that of the one before needs to be adopted to defeat the settled mind-set of the US lawmakers, in the language of the House resolution, that Sri Lanka should be hauled before an international criminal tribunal.
This is the test for Sri Lanka of its public diplomacy and strategic communication skills.
- Asian Tribune