Assessing the Validity of Legal Challenges to the UN Panel Report

Apologists for the Sri Lankan government have marshaled a number of arguments in response to the growing pressure on accountability for war crimes and crimes against humanity. Some are less clever than others. The argument that the Panel Report is part of a Western witch hunt against Sri Lanka as punishment for defeating terrorism needs only be restated for purposes of rebuttal. The claim is so self-evidently puerile a response to mounting evidence of serious international crimes that meaningful rebuttal is difficult. While some conspiracy theories are amusing, others are tiresome. The suggestion that a South African apartheid era human rights lawyer and a former Attorney General of Indonesia together with one of the world’s most respected international humanitarian law scholars conspired themselves to or fell prey to a conspiracy to restore the idea of a separate Tamil state is as stunning as it is idiotic. The better arguments are at least falsifiable and therefore more honest. Examples include those challenging the legality of the constitution of the panel itself, the legal rules and principles applied by the Panel or the criticism that the Panel overlooked crucial evidence. I believe that these arguments are easily rebutted on a purely legal and logical analysis of the claims.

However, perhaps the hardest challenge facing proponents of accountability are arguments made by those who, while not subscribing to the government’s alibis, still question the value and/or the desirability of pursuing international action. There are many shades of opinion representing this spectrum, with some thoughtful critiques from those who have demonstrated a solid commitment to human rights, the rule of law and reconciliation.[1] These arguments essentially boil down to the fear that the backlash against the report will impede rather than catalyze national reconciliation or reform of the state.

This piece addresses a few of the popular legal or quasi legal arguments employed in the attack on the Panel and its Report. A second follow-up piece will attempt to grapple seriously with more meaningful voices that caution against a blind belief in international justice that does not pay due heed to the domestic ripples generated by international pressure on war crimes.

Power of the Secretary General to appoint the Panel?
One of the common refrains heard, not just from government ranks but also from some members of the UNP was that the UN Secretary General exceeded his authority in appointing a Panel of Experts to advise him on accountability in Sri Lanka. There are different versions of this argument. One version suggests that the appointment of the Panel violated Sri Lanka’s sovereignty guaranteed by article 2 (7) of the Charter which reads: “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The argument is that the civil conflict was “essentially within the domestic jurisdiction” of Sri Lanka and thus UN intervention was unwarranted. This claim is, with all due respect, bad in law. International crimes, the application of international humanitarian law and human rights obligations arising out of multilateral treaties are not matters that are essentially within the domestic jurisdiction of any state. Ever since the International Court of Justice ruled in the Western Sahara advisory opinion that human rights violations in Namibia constituted a “flagrant violation of the principles and purposes of the Charter of the United Nations”,[2] the debate on whether human rights are “essentially within the domestic jurisdiction” of states has been considered closed. There is even less of a doubt about whether international criminal law (ICL) and international humanitarian law (IHL) violations go beyond the exclusively domestic, because violations of these laws are by definition international crimes or violations of international law.

Another popular argument is that the Secretary General (SG) was not authorized by the UN Charter to constitute such a Panel. Interestingly, Sri Lanka is the only country of the close to two-hundred states that alleged a lack of vires. Even Russia merely indicated caution.[3] The UN Charter vests certain powers with the UN Secretary General including “good offices” powers under article 99. The good offices powers of the SG under article 99 are only meaningful if in fact the SG is able to arrive at an informed decision on which matters warrant the attention of the Security Council. While this section provides ample textual support for the SG’s power to appoint the Panel, one need not even go that far. The Reparations advisory opinion by the ICJ laid down the principle that international organizations possessed implied powers necessary for the effective performance of their functions.[4] As the Chief Administrative Officer of an organization tasked by States with “promoting and encouraging respect for human rights and for fundamental freedoms”[5], the appointment of a Panel to advise him on accountability in a member state is undeniably a necessary implied power. All but one of the member states of the UN appear to tacitly or explicitly consent to this exercise of authority by the SG.

Overstepping its Mandate?
The counter-argument then may well be that while the SG had the power to advise himself on accountability, the Panel had no right to go beyond that mandate and inquire into the veracity or credibility of allegations of international crimes. This argument is difficult to comprehend. The Panel could never have been expected to advise the SG within a factual vacuum and this is precisely why the SG’s mandate to the Panel was to advise him on accountability “having regard to the nature and scope of alleged violations.”[6] Determining the nature and scope of the alleged violations is thus a necessary precondition to the fulfillment of the Panel’s mandate and falls squarely within its parameters.

Credible Allegations?
Yet another line of attack is to assail the Panel’s process of verifying allegations. What is a credible allegation that the Panel speaks of? Simply put, ‘credible allegations’ remains the international legal standard that gives rise to the duty to investigate. No less an authority than the European Court of Human Rights has declared it to be so,[7] which is why the suggestion that ‘credible allegations’ is some amorphous standard employed arbitrarily by the Panel is a false claim. Paragraphs 51 and 52 of the Report detail the rigorous processes by which the credibility of allegations was assessed. Of interest to domestic lawyers is the Panel’s use of the reasonableness test to define ‘credible’. Where the Panel found a reasonable basis to conclude that a violation occurred, the allegation was termed ‘credible’.

Human Shields: Whitewashing the LTTE’s crimes?
There has been some concern and criticism of the UN Panel Report because, contrary to popular perception, it failed to find credible allegations of the use of ‘human shields’ by the Tigers.

The ICC Rome Statute’s formulation of the war crime of using human shields is formulated thus: “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations”[8] This prohibition of using civilians to render points, areas or forces that would otherwise be legitimately targeted immune from attack is gleaned from Geneva Conventions III and IV.[9]

A couple of explanatory notes are in place at this point. First, the war crime of using human shields is a specific intent crime – which means that evidence to establish the intention to use civilians to render what would otherwise be military objectives immune from attack needs to be established. Specific intent crimes also require more than a mere knowledge of the consequences of the act. In other words, recklessness is insufficient to satisfy the mental element of the crime. Other specific intent crimes in international law include genocide, where the intention to destroy a group or a substantial part of a group forms the operative mens rea. The rendering of military objectives immune from attack is substantially divergent from an attempt to, say, conceal a military objective within civilian dwellings because concealment does not render an objective immune. If for instance, the anticipated military advantage of attacking the object exceeded the loss to civilians – the concealed objective and dwelling could even be attacked in a manner that is consistent with international humanitarian law (IHL). Moreover, the intention to render a target immune from attack is predicated on an expectation that the use of shields will render the target immune – i.e. – the opposing party will desist from attacking the military objective in the event human shields are used. As respected military observer, ex-soldier and writer David Blacker observes “the SL military has targeted Tiger positions in spite of the use of human shields.”[10] Thus the awareness by a party of the possibility that the opposing party will attack military objectives in spite of the co-location of civilians and military objectives is mutually incompatible with an intention to render a target immune from attack. The commission of an act with the awareness that such act will not render a target immune can never evince an intention to render a target immune. This is a definitional incompatibility.

Second, the acts constitutive of the crime of using human shields may very likely violate other prohibitions in IHL and constitute other crimes besides the crime of using human shields such as the prohibition on taking hostages, the violation of the principle of distinction and the violation of the duty to take precautions to separate military and civilian objectives. These violations have been criminalized by the Rome Statute, the ICTY and ICTR statutes and hybrid statutes. Thus, an individual(s) who in fact used human shields may well be prosecuted for and convicted of other war crimes besides the war crime of using human shields.

Third, every intentional violation of IHL does not constitute a war crime. This is based on the distinction between international humanitarian law (IHL) and international criminal law (ICL). To constitute a war crime, a violation of IHL must first be ‘criminalized’ (made an offence) under ICL. Only violations that are criminalized may give rise to individual criminal responsibility. For example, IHL requires that “every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article 123, on the other hand, a card… informing his relatives of his capture, address and state of health.”[11] However, an intentional violation of this requirement has not and may never reach the status of war crime. Individuals who violate this requirement cannot be hauled before an international court. The grave breaches provisions of the GCs provide a non-exhaustive list of criminalized violations of IHL provisions. The explosion of new tribunals codifying international crimes has taken international criminal law from a reliance on custom to a largely uniformly accepted code of crimes. This process culminated with the creation of the ICC through the Rome Statute which codifies crimes under ICL, and to which more than 120 States are now parties.

Fourth, not all crimes applicable in international armed conflicts (IACs) are applicable in non-international armed conflicts (NIACs). This flows from the idea that not all IHL obligations on belligerents in IACs are applicable in NIACs. According to the Rome Statute, the use of human shields is a sui generis crime in IACs, but it is not a crime in NIACs. The reason for the exclusion of human shields from the list of crimes applicable in NIACs is precisely because the prohibition on using human shields as a stand-alone prohibition features only in Geneva Conventions III and IV and Additional Protocol I (which apply exclusively to IACs) – and not in Additional Protocol II (which applies to NIACs).[12] However, customary IHL prohibitions do apply across the board, even in NIACs. Rule 97 establishes the customary nature of the prohibition of the use of human shields in IHL, but it does not suggest a criminalization of this prohibition in NIACs. Thus, no individual in the Sri Lankan civil war can ever be convicted by the ICC of the war crime of using human shields, given that the conflict in Sri Lanka was undoubtedly an NIAC.

The Panel Report made the following observations on the use of human shields : “…With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97,ICRC Study).” (emphasis mine)

The supposed insistence on deliberate movement of civilians as the sole criterion for a finding of credible allegations of the use of human shields has been the subject of some debate.[13] As the commentary to the ICC Statute makes clear, movement or “otherwise taking advantage of the location of one or more civilians” constitutes the first element of the crime of using human shields.[14] Thus two scenarios present themselves. [A] – in the event the civilians intended to be used as human shields were not present within or on the military objective before they were used as human shields, movement to the military objective is necessary. On the contrary in scenario [B] – where such civilians were in fact present within or on the military objective, there must be proof that the prior presence of the civilians in or on a military objective was taken advantage of. It is clear that the Panel’s report that movement was a sine qua non of the violation is solely in the context of the allegation that the failure to allow civilians to leave the combat zone constituted the use of human shields. This was the charge that was popularly articulated in the public sphere. Thus, the only question dealt with by the Panel was whether the broad policy of the LTTE to refuse to allow civilians to leave the areas within their control – indubitably an IHL violation and potentially a war crime – constituted additionally a violation of the human shields prohibition. The Panel did not inquire into the question of specific cases within the no fire zones that could potentially be individual cases of the use of human shields. It did not consider the evidence that the concealment of boats near or in civilian dwellings constituted the use human shields either. This is presumably because concealment and rendering immune are occasioned by intentions that by their very nature are different. Given that the combat zone in its totality did not constitute a military objective – evidenced by the Panel’s finding that the government violated IHL by indiscriminately attacking the no fire zone – the Panel was necessarily dealing with scenario [A] – where civilians were not present within or on military objects. Movement was thus rightly used as the sole condition for proof of intent. However, if civilians were actually present within or on a military objective, movement would evidently not be necessary. There does not appear to be any evidence of civilians actually finding themselves within or on military objectives before they were allegedly used as human shields by the LTTE. If such evidence were to emerge in the future – such as for example the incidental presence of a civilian in an LTTE bunker and subsequent detention there with the intention of rendering the bunker immune – the finding of the Panel may then need to be reconsidered.

A brief reference to the Review of the Indictment in the Karadzic/Mladic case is appropriate in order to consider its relevance to the Panel Report. This Review is cited by the ICRC in their study on customary IHL. It has been suggested that the non-reference to movement in Mladic demonstrates that movement is not a necessary to prove the use of war crimes, which in turn demonstrates the error in the Panel’s reasoning. The point that movement is not a necessary condition – in scenario [B] cases – is well established. However, the paragraph above demonstrates that the Panel finding on human shields was based on the evidence available to date that falls squarely within scenario [A]. Moreover, Mladic does not serve to demonstrate the irrelevance of movement in any case since in Mladic, the protected persons were in fact moved. The Review notes that protected persons were “tied to potential targets of NATO airstrikes, specifically the munition depot at Joharinski Potok, the radar facility at Jahorina and a nearby communications centre.”[15] While the Review does not explicitly use the word “movement”, it appears that the peacekeepers were in fact moved to the munitions depots, radar facilities and communication centres. The ‘human shield’ himself recently testified that he and others were captured in their office before they “were driven away” to potential NATO targets.[16] Thus, Mladic, like the evidence considered by the Panel, is limited to scenario [A] where movement is a necessary condition to prove the use of human shields.

Thus to conclude this section on human shields, it appears that the finding of the Panel Report that the LTTE did not use human shields is the only reasonable conclusion that can be inferred from the facts available at this stage.

Panel showed leniency to the LTTE?
The charge that the Panel ‘went soft’ on the LTTE is bewildering. The Panel’s legal findings indicate a willingness to impose the maximum possible obligations on the conduct of the LTTE.  For example, the Panel proceeded on the basis that certain human rights obligations bound non-state actors and by extension the LTTE[17] – a groundbreaking finding on an issue that is by no means settled in international law.

Conclusion
This piece has attempted to deal with some of the popular legal or legalistic challenges that have been leveled against the constitution, process and outcome of the Panel Report. It is notable that these challenges emanate exclusively from Sri Lanka – its government and its supporters. While the international community may be divided on the politics of international accountability, the legality of all aspects of the Panel’s formation and work have hardly ever been questioned outside the country. On the contrary, as evidenced by comments made by the brilliant up and coming ‘star’ of the international law firmament and co-editor of the website of the European Journal of International Law Marko Milanovic “[t]he report’s discussion of the applicable law and legal findings, at p. 52 et seq, seem [to me] to be more or less watertight. There are no flights of fancy here; even when broad or progressive, the legal findings are appropriately cautious when caution is warranted.”[18]

Authors note: Niran Anketell is an attorney-at-law based in Colombo. He read for his Masters degree in International Legal Studies at New York University as a Hauser Global Scholar and Fulbright Scholar. He has also worked at the Office of the International Co-Prosecutor in the Extraordinary Chambers in the Courts of Cambodia as a Fellow of International Law and Human Rights attached to the NYU Center for Human Rights and Global Justice.