Enforcement of IHL at Non International Armed Conflict

1. Enforcement of IHL at Non International Armed Conflict Position of enforcement in Nepal and Sri Lanka Group Members: Yvonne Pande A.G.K.Bhagya Ekta Lamichhane Pokhral W.B.H.Jayawardane D.Epasinghe J.K.T.U.Padmasiri

2. Introduction • International law binds states to observe certain agreements, but unlike national law, does not provide for the equivalent enforcement unless and until the subject state consents with such enforcement. This is due to the state being regarded as the only sovereign entity, and enforcement from outside effectively violates such state sovereignty.  • Within a state the government has a monopoly of force to impose law, but no such monopoly exists at the international level. Any violation of international law therefore can only be redressed in one of two ways, discord (diplomatic or conflict) or reciprocity.

3. The sources of IHL can be divided into two separate and distinct areas: • Positive laws, which includes various international treaties and conventions: the four Geneva Convention and three optional Protocols. • Common or customary law which includes a vast historical body of case law and judicial decision, the most reason and relevant of which have come from a series of international courts or tribunals over the past 15 years. Customary international law is important, despite the absence of any uniform agreement to what it includes, as in many states, such as the UK, international treaties do not form part of national legislation, but courts can apply international customary law (Greenwood 1995, p.124).

4. From the beginning, IHL, by its very nature, has been applicable to armed conflicts between states. Slowly, however, due to changing circumstances, it became necessary that humanitarian law rule in cases of internal, non-international conflict, in which conditions resemble those of international war. • the goal of humanitarian law is to protect the fallen, those defeated in combat. It is only just, therefore, that humanitarian law be applied during fratricidal confrontations, which can be even more cruel and merciless. • Protocol II Additional to the Geneva Conventions of 1949 has entered into force. This Protocol supplements the four Geneva Conventions of 1949 that deal with victims of international armed conflict. Common article 3 of the Geneva Conventions establishes, a micro system of humanitarian rules applicable in internal armed conflict. Protocol II amplifies common article 3. • internal armed conflict is now subject to the rule of international law.

5. Conflict in Nepal • The conceptual foundations of IHL have real grounds in Nepal’s own historical context. The 800 BCE religious epic, the Mahabharata, was partly located within the borders of modern-day Nepal, and the section covering the KurukshetraWar, regarded by some historians as having taken place between 600 and 500 BCE, outlines the Dharmayuddha, or code of conduct for righteous warfare (Singh 1984, p.531). The Dharmayuddha provides the basis for some modern IHL, prohibiting as it does the killing or degrading treatment of surrendered combatants, and banning any attack on civilians, with special additional protections for women.

6. Nepal conflict a non international armed conflict • During the conflict, the Maoists’ developed a uniformed and mostly-armed force named the People’s Liberation Army, a non-uniformed political section (the party), and a non-uniformed administrative section named the United Front. They also created ‘base areas’ across the country that were under their almost complete administrative control. According to the ICRC Commentary to GC4, in order for an armed conflict to be recognised legally as a non-international armed conflict, and above the threshold of a disturbance, the insurgents should have the characteristics of possessing an • organised military force • an authority responsible for its acts, while acting within a determinate territory, • having the means of respecting and ensuring respect for the GCs (ICRC 1949, p.35). The national army should also be mobilised against the threat. According to the well-respected INGO, Human Rights Watch, the conflict surpassed the required characteristics of a NIAC in 2001 upon the deployment of the national army: • As a non-state party, the Maoists are not and could not be signatories to the GCs. However, the Maoists have agreed through common Article 3 to be bound by all parts of the conventions, as is the state, regardless of reciprocity. • Despite both the aforementioned historical and legal context, widespread violations of IHL took place by both parties during the NIAC.

7. Extent of protection for civilians in Nepal • There are two primary constraints to the extent to which IHL has provided protection to civilians in Nepal: the non-international nature of the conflict, and the lack of post-conflict enforcement.

8. Limitation 1: Protection for civilians are limited in NIAC • Any protections in IHL are limited according to the geopolitical nature of the conflict in question. IHL was originally and primarily concerned with international, inter-state armed conflict (IAC) and the regulation of adverse national armies, as well as their interaction with each other and the civilians within their adversary’s territory. By its very nature, international law could not apply in a national situation, as it undermined the sovereignty of the state. • The GCs as written applied only to IAC, with the exception of common Article 3, which, put briefly, states that all parties, including non-state parties, are bound to treat ‘persons taking no part in the hostilities’ humanely, prohibiting violence, hostage-taking, outrages upon personal dignity, and sentencing outside of regular courts. • AP2, which Nepal has not signed, was intended to supplement such legal brevity on NIAC, but many important tenets, such as the principle of distinction and the terminology of ‘combatant’ and ‘parties to the conflict’, were stripped out of the final draft by states worried of the potential threat from insurgents.

9. A secondary issue has arisen in the case of Nepal from the absence of a ‘combatant’ status in NIAC. Neither common Article 3 nor AP2 define or give status to a non-state fighter. Everyone is categorised as civilians or ‘persons taking no active part in the hostilities’ until they take part in fighting, upon which they enter a legal vacuum with none of the protections given to ‘combatants’ such as prisoner of war status, and none of the rules of humane treatment provided for under common Article 3 (Both 2004, p.5). • Once the hostilities are over, such fighters in Nepal melt back into the civilian population as civilians, and yet remain dangerous to the state. In practice, this lack of clear definition has led to greater infringements on legitimate civilians who have become victims of a suspicious and invasive state army. • In the absence of ‘combatant’, the state has also been able to categorise the Maoists as ‘terrorists’. Under the Terrorist and Disruptive Activities Ordinance, Maoists, regardless of whether they are ‘persons taking no active part in the hostilities’ and therefore civilians, can be held without trial for up to 12 months, seemingly in contravention on common Article 3(1)(d)

10. This is not to say that civilians in Nepal are completely unprotected in IHL. Indeed, one of the primary reasons for the ICRC’s extensive Customary Rules was the need to clarify such protections, with a resultant total of 145 of the 161 identified rules applying in NIAC. An example of a general trend toward customary IHL being applicable in NIAC can be seen as early as 1968 in UN General Assembly Resolution 2444, which recognises ‘the necessity of applying basic humanitarian principles in all armed conflicts’ (my underscore). The Resolution went on to include the principle of distinction and proportionality, and was regarded by the USA as representing existing customary IHL at the time. This message was repeated by an ICTY appeal chamber decision in 1995: • Since the 1930s, however, the aforementioned distinction [between NIAC and IAC] has gradually become more and more blurred, and international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict […] If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight. • The decision by the ICTY to allow the prosecution of violations of common Article 3 in NIAC has since been supported and added to by the statutes of the ICTR and the ICC, which outline and expand the list of such violations applicable for prosecution.

11. Limitation 2: enforcement of IHL limited • Nepal is not a signatory to the Rome Statute but since it is a parliamentary order and promises from government it has the onus to enforce IHL nationally. • The CPA and various government statements since have committed to addressing violations of IHL by both parties during the NIAC. The CPA’s preamble clearly states that the parties are: ‘Remaining committed towards […] international humanitarian laws’ , repeated under Article 7:‘remaining committed to […] international humanitarian law’, but with no greater detail except Article 5.2.5: • ‘Both sides agree to constitute a High-level Truth and Reconciliation Commission through mutual agreement in order to investigate truth about those who have seriously violated human rights and those who were involved in crimes against humanity in course of the war and to create an environment for reconciliation in the society.

12. The 2007 Interim Constitution has since supplanted the CPA. It contains further confirmation of the government’s intentions regarding violations of IHL. • Part 4, ‘Responsibilities, directive principles and policies of the state’, is largely a description of intended policies, but provides a responsibility to establish an ‘Investigation Commission’ to probe disappearances, provide compensation and rehabilitation for victims of the conflict and their property. • ‘to constitute a high-level Truth and Reconciliation Commission to investigate the facts about those persons involved in serious violations of human rights and crimes against humanity committed during the course of conflict, and to create an atmosphere of reconciliation in the society.’ • Part 4 overlooks, presumably intentionally, criminal prosecutions for violations of IHL, but what little it does require of the state, is nullified by Article 36, ‘Questions not to be raised in court’: ‘No question shall be raised in any court as to whether provisions contained in [Part 4] are implemented or not.

13. In April 2010, the government began to fulfil the constitutional directive and registered a parliamentary bill for a Truth and Reconciliation Commission. The process has since stalled, however. According to the media, the delay has primarily been due to a difference in opinion, with the Maoists pushing for emphasis to be placed upon reconciliation mechanisms, and others more interested in truth and eventually prosecution (Acharya 2011) • The Supreme Court, has issued a number of indictments and orders, all ignored, including an order for the government to establish a high level commission of inquiry into disappearances during the NIAC, as pledged in the Interim Constitution. The only step that the government has taken, the aforementioned draft bill on a Truth and Reconciliation Commission, is, according to Amnesty International, incompatible with IHL, providing for amnesty for violators and introducing a statute of limitations to violations (Amnesty International 2010). • Bell believes that without stronger safeguards the draft bill could also make matters worse by using financial compensation to reward political patronage among some groups, without providing justice to others (Bell 2007).

14. Even if violators were prosecuted, very few laws exist on the Nepali law books that would cover violations of IHL. According to Appeals Court Judge Bhattrai, there exist only limited laws on sexual assault, enslavement, forcible transfer of population and destruction of property, and no laws that criminalise torture, enforced disappearance, abduction, taking of hostages, wanton attacks on civilians or persecution on the basis of political beliefs, race, ethnicity, culture or gender (Bhattarai 2007, p.10). • In addition, there are no definitive positions in Nepali law on issues such as the exploitative commission, inducement, incitement or abating of crimes, and no duty of persons in authority to prevent or report crime. • Referral to the ICC remains a possibility as a complementary court, and one that has reportedly been the subject of much diplomatic pressure in Kathmandu (French Embassy Kathmandu 2008)

15. Conflict In Sri Lanka • The Tamil Tigers had been waging a full scale war for an independent state of Tamil Eelam in the North and East of Sri Lanka since 1983. • After the failure of the Norwegian mediated peace process in 2006 the Sri Lankan military launched offensives aimed at recapturing territory controlled by the Tamil Tigers. • By July 2007 the military had recaptured the entire east. The military offensive in the north escalated in October 2008 as the Sri Lankan military attacked the Vanni heartland of the Tamil Tigers.

16. After successive defeats the Tamil Tigers were forced to retreat to the north-east coast in Mullaitivu District. The civilian population of the Vanni also fled. The Sri Lankan government and human rights organizations have alleged that the civilians were forced to do so by the Tamil Tigers. By January 2009 the Tamil Tigers and the civilians were trapped in a small piece of land on the north-east coast. • As the Sri Lankan military advanced further into Tamil Tiger controlled areas, international concern grew for the fate of the 350,000 civilians trapped. On 21 January 2009 the Sri Lankan military declared a 32 square kilometres (12 sq mi) Safe Zone 5 kilometres (3.1 mi) north-west of Puthukkudiyiruppu,between the A35 highway and ChalaiLagoon.

17. According to the Sri Lankan the purpose of the Safe Zone was to allow the trapped civilians to cross into territory controlled by the military.However, very few civilians actually crossed into the military territory. The Sri Lankan military, UN and human rights organizations accused the Tamil Tigers of preventing the civilians from leaving. • The fighting between the military and the Tamil Tigers continued, causing the civilians to flee from the Safe Zone to a narrow strip of land between Nanthi Kadal lagoon and the Indian Ocean. On 12 February 2009 the military declared a new 10 square kilometres (3.9 sq mi) Safe Zone in this area, north-west of Mullaitivu town.

18. Over the next three months a brutal siege of the Safe Zone occurred as the military allegedly blitzed by land and air the last remnants of Tamil Tigers trapped in the Safe Zone. Satellite images of the Safe Zone publishes by the UN, foreign governments and scientific organizations showed heavy damage that could have only been caused by bombardment.Inevitably many thousands of civilians were killed or injured. • The UN, based on credible witness evidence from aid agencies as well civilians evacuated from the Safe Zone by sea, estimated that 6,500 civilians were killed and another 14,000 injured between mid-January, when the Safe Zone was first declared, and mid-April.There are no official casualty figures after this period but a report in The Times claims that that civilian deaths increased to an average of 1,000 per day after mid-April 2009.

19. The UN has refused to confirm the Times' allegations.Estimates of the death toll for the final four months of the civil war (mid-January to mid-May) range from 15,000 to 20,000.A US State Department report has suggested that the actual casualty figures were probably much higher than the UN's estimates and that significant numbers of casualties were not recorded.As the civil war edged towards a bitter end in late April/early May the number of civilians leaving the Safe Zone turned from a trickle to a torrent. On 19 May the Sri Lankan government declared victory. • After the end of the war a number of countries and human rights organizations called for an independent investigation into the final stages of the civil war.

20. Enforcement of IHL - Sri Lankan Scenario • There are allegations that war crimes were committed by the Sri Lankan military and the rebel Liberation Tigers of Tamil Eelam (Tamil Tigers) during the Sri Lankan Civil War, particularly during the final months of the conflict in 2009. • The alleged war crimes include attacks on civilians and civilian buildings by both sides; executions of combatants and prisoners by both sides; enforced disappearances by the Sri Lankan military and paramilitary groups backed by them; acute shortages of food, medicine, and clean water for civilians trapped in the war zone; and child recruitment by the Tamil Tigers.

21. A panel of experts appointed by United Nations Secretary-General (UNSG) Ban Ki-moon to advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the civil war found "credible allegations" which, if proven, indicated that war crimes and crimes against humanity were committed by the Sri Lankan military and the Tamil Tigers. • The panel has called on the UNSG to conduct an independent international inquiry into the alleged violations of international law. • The Sri Lankan government has denied that its forces committed any war crimes and has strongly opposed any international investigation.

22. War crimes are prohibited by the Geneva Conventions, of which Sri Lanka is a signatory. In 2002 the International Criminal Court (ICC) was created by the Rome Statute to prosecute individuals for serious crimes, such as war crimes. • Sri Lanka is not a signatory of the Rome Statute. Therefore it is only possible for the ICC to investigate and prosecute war crimes in Sri Lanka if the UN Security Council was to refer Sri Lanka to the ICC, which is unlikely. • However, individual countries may investigate and prosecute alleged culprits over whom they have jurisdiction, such as those with dual-nationality. In addition, a number of countries apply universal jurisdiction in respect of certain crimes, such as war crimes, allowing them to prosecute individuals irrespective of where the crime was committed, the nationality of the culprits and the nationality of the victims

23. UN Human Rights Council 11th Session • In May 2009 17 countries (Argentina, Bosnia & Herzegovina, Canada, Chile, France, Germany, Italy, Mauritius, Mexico, Netherlands, Slovenia, Slovakia, South Korea, Switzerland, Ukraine, Uruguay, and the United Kingdom) attempted to get the 11th session of the United Nations Human Rights Council (UNHRC) to investigate war crimes in Sri Lanka. • They put forward a resolution that deplored abuses by both the Sri Lankan government forces and the Tamil Tigers, urged the government to co-operate fully with humanitarian organizations and to provide protection to civilians and displaced persons, and made an appeal to the Sri Lankan government to respect media freedom and investigate attacks against journalists and human rights defenders.

24. UN Human Rights Council 19th session • In March 2012, the United Nations Human Rights Council adopted a resolution on promoting reconciliation and accountability in Sri Lanka by a vote of 24 in favour, 15 against and 8 abstentions. • The resolution welcomed the constructive recommendations contained in the Lessons Learnt and Reconciliation Commission (LLRC), a commission of inquiry appointed by the Sri Lankan government to look back at the civil war, and noted with concern that the report did not adequately address serious allegations of violations of international law.

25. It called upon the government of Sri Lanka to implement constructive recommendations made in the LLRC report and to take all necessary additional steps to fulfill its relevant legal obligations to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans. • It requested the government to present an action plan detailing the steps that it has taken and will take to implement the recommendations made in the commission's report, and also to address alleged violations of international law. The resolution also encouraged the (OHCHR) to provide advice and technical assistance on implementing the above-mentioned steps; and requested the OHCHR to present a report on the provision of such assistance to the Human Rights Council at its 22nd session in March 2013.

26. Thank you Reference: http://nepalikuire.com/international-humanitarian-law-for-nepali-civilians/