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Pillay’s report and the ICRC study on ‘use of force in armed conflicts’
View(s):UN Human Rights chief Navi Pillay’s report to the 25th session of the Human Rights Council was made public on Feb 24, 2014. It calls for the UNHRC to establish an ‘international inquiry mechanism to further investigate the alleged violations of international human rights and humanitarian law’ during the last stages of the war in Sri Lanka, and to ‘monitor any domestic accountability processes.’ The report has been ‘rejected’ by the Government.
It is interesting that between the 24th session of the HRC in Sept 2013 when Pillay made an oral presentation on Sri Lanka, and her formal report to the 25th session this month that has just been released, another landmark report has been published by the International Committee of the Red Cross (ICRC) on the subject of the ‘use of force in armed conflict: interplay between the conduct of hostilities and law enforcement paradigms.’ This document which is the outcome of an expert meeting held in January 2012 and was published in Nov 2013 has relevance to Sri Lanka because it deals with complex issues relating to the application of international human rights law and international humanitarian law in armed conflict situations — a subject on which the ICRC is probably the best authority.
The ICRC’s mandate is based on the Geneva Conventions of 1949, their Additional Protocols, its Statutes and those of the organization itself and its resolutions.
It may be seen that the two US-led resolutions on Sri Lanka, which appear to be in lockstep with the Human Rights chief’s reports, are meticulously crafted in terms of violation of international humanitarian law (IHL) and international human rights law (IHRL). They focus almost entirely on the breaches of these laws by the state, with the non-state party — the LTTE — receiving far less attention. The state party’s role is further isolated by confining the resolutions to the ‘last stages of the war,’ thereby ignoring the carnage wreaked by the LTTE for 30 years.
Ironically, the references made to the LTTE’s violations in Pillay’s latest report seem to invert the narrative in such a manner that the state is blamed for these as well. It says, “There has yet to be any prosecutions or trials for the war crime of child recruitment.” The High Commissioner seems to have forgotten why the Sri Lankan armed forces had to be mobilised against the LTTE in the first place.
An important aspect of the ICRC’s study is that it highlights the fact that the applicability of IHL and IHRL is a subject of controversy on which experts do not always agree. The report looks at situations of armed conflict, or the use of lethal or potentially lethal force by armed forces and law enforcement officials, under two different paradigms: the ‘conduct of hostilities paradigm,’ derived from international humanitarian law (IHL) and the ‘law enforcement paradigm,’ mainly derived from international human rights law (IHRL). IHRL binds only states, whereas IHL binds both state and non-state armed groups.
The basic principles of IHL are distinction (distinguishing between civilians and civilian objects on the one hand, and combatants and military objectives on the other), proportionality and precautions in attack. These three rules are described as the main part of the ‘conduct of hostilities paradigm.’
IHRL is based on different assumptions. The essence of its principles is that lethal force may be used only as a last resort in order to protect life. A “strict” or “absolute” necessity standard is attached to any use of force, meaning that force may not exceed what is strictly or absolutely necessary to protect life. These rules describe the ‘law enforcement paradigm.’
Some experts involved in the study were of the opinion that human rights law pertains to the relationship between a state and its people and that it is not applicable in armed conflict situations as a matter of law. The report drew attention to the aspect of asymmetry in conflicts between armed forces of a state and armed groups of non-state parties that are not bound by IHRL. This would have particular relevance to the Sri Lankan case.
“It was also suggested that imposing human rights obligations on States in armed conflict situations might increase the asymmetry in non-international armed conflicts between States and organised non-State armed groups, since the latter are in principle not bound by human rights law. As a consequence, there would not only be an asymmetry in the means and methods of warfare used but also as regards the range of rules belligerents must respect. This would provide an advantage to organised non-State armed groups which are bound by IHL only, while States would be bound by both IHL and human rights law.”
The report further notes that “in the context of non-international armed conflicts or occupation, some human rights bodies have applied the law enforcement paradigm even when dealing with the use of force against persons who would be considered legitimate targets under IHL.” It would seem that Pillay, the western powers and human rights groups targeting Sri Lanka belong to this tribe.
The report observed that this approach is problematic and has led to divergence of opinion among legal scholars. The experts meeting showed that the issue of determining which paradigm can be relevant in situations of non-international armed conflict where force is used against legitimate targets, remains “very controversial.”
The ICRC study represents an attempt to address the complex legal and ethical issues relating to HRL and its application in present-day armed conflicts around the world, most of which are non-international. If there is one lesson to be drawn from it, it is that this is still an inchoate area of law, the modalities of which are far from settled in many respects. In the light of these uncertainties, the OHCHR, the US and others supporting the anti Sri Lankan resolutions would seem to have undertaken a largely experimental project. It would be relevant to ask on what basis Sri Lanka been picked as the guinea pig in this exercise.