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US House Resolution on Sri Lanka: Its meaning and the need for different approach.

Washington, Sept. 17 -- 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.

Either Sri Lanka's External Affairs Ministry or its diplomatic mission in Washington separately or jointly will undertake this public affairs, public diplomacy and strategic communication endeavor to reach a majority of the remaining 428 House Members to defeat this resolution.

The Asian Tribune read the entire House Resolution 177 tabled on 07 September, and discovered nothing new that we haven't heard either from the US Department of State officials or the American legislature, both the senate and the house on the issues of transparency, accountability, violation of international humanitarian law (IHL) and international human rights law (IHRL).

On two occasions, former American ambassador to Sri Lanka and incumbent assistant secretary of state for South and Central Asian Affairs bureau Robert Blake pronounced that if Sri Lanka does not undertake a domestic mechanism of address these issues the international community will be forced to undertake such an investigation.

In fact our concern here is not the contents of House Resolution 177 but the strategy Sri Lanka could deploy, a strategy different to what this South Asian nation 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 in using the technique of mid-eighteenth century American circus promoter and entrepreneur P.T. Barnum who famously said "there's a sucker born every minute: there's no such thing as bad publicity, and the more outrages your claim the more people that will notice you and buy a ticket to your show."

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 most 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.

Just before the news that Sri Lanka was planning to lobby the 'friendly' US House Members to defeat House Resolution 177 this writer was perusing a US Congressional Research Service (CRS) document dated May 4, 2012 'Legal Issues to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities' which is still not widely distributed gave the following interesting advice to the United States congressmen, both senators and House members under Armed Conflict.

(Quote) Perspectives differ with respect to the legal framework that governs targeted killings, both as a matter of international law and domestic law. One possible framework is the law of armed conflict. It is widely accepted that anyone who participates directly in an armed conflict is subject to being captured or killed in accordance with the laws of armed conflict. (End Quote)

(Quote) During an armed conflict, the law regulating the conduct of military operations during war applies. This law is variously called the "law of war," the "law of armed conflict" (LOAC), or by its Latin term jus in bello. Where the law of war applies, targeted killing is lawful when the target is a "combatant" or "fighter," which, during a non-international armed conflict, includes civilians who are at the time of attack directly participating in hostilities or who perform a continuous combat function as part of an armed group that is a party to the armed conflict. The rules governing targeting in this context are seemingly more permissive than in the others; any legitimate military target may be attacked based on the status of the targeted individual without regard to the immediate risk the target may pose, so long as the attack is not conducted in a "treacherous" manner. (End Quote)

Hague Regulations prohibiting treachery is "construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy's head, as well as offering a reward for an enemy 'dead or alive.' It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere."

(Quote) Additionally, the law of war requires that any armed attack must be militarily necessary for the pursuit of a legitimate end and be proportionate to achieving it. (End Quote)

The principle of military necessity requires that the kind and degree of force used must be actually necessary for the achievement of a legitimate military end and must be lawful under international humanitarian law.

(Quote) No more force than reasonably necessary may be employed, and measures must be taken to minimize harm to civilians. While there is no requirement that a targeted individual be offered an opportunity to surrender, an effort to surrender must be accepted. (End Quote)

Congressional Research Service is an independent arm of the United States Congress producing research/analytical documents giving cogent advice to the US lawmakers. The lawmakers not only take these CRS analytical advise seriously they incorporate them in their policy platforms.

The CRS document in another place says:

(Quote) If an armed attack on the part of a non-state armed group gives rise to a state's right of self-defense, it remains to be considered what rules govern the resulting use of force on the part of the state. Some argue that the necessity, proportionality, and immediacy requirements to justify the resort to force also provide an adequate framework to govern its use.41 Others, however, believe that the legal framework applicable under the law of war applies in the event hostilities meet the threshold to be considered an armed conflict, or that the legal framework applicable to peacetime law enforcement operations applies in the event they do not. (End Quote)

The above remarks in the CRS document is quite relevant to the current issue Sri Lanka is facing, whether the armed forces in its battle against the Tamil Tiger movement violated IHL and IHRL in committing war crimes and even genocide.

The US House of representative Resolution 177 says:

(Quote) The LLRC report failed to adequately address issues of accountability for both the government and the terrorist Liberation Tigers of Tamil Eelam, for credible allegations of war crimes and crimes against humanity;

Urges the Government of Sri Lanka, the international community, and the United Nations to establish an independent international accountability mechanism to look into reports of war crimes, crimes against humanity, and other human rights violations committed by both sides during and after the war in Sri Lanka and to make recommendations regarding accountability; (End Quote)

Sri Lanka's public affairs, public diplomacy and strategic communication in dealing with these issues have been confined to what steps it has taken (1) appointment of a committee to implement the recommendations of the LLRC (2) establishing a human rights commission (3) rehabilitation of former combatants (4) resettlement of the displaced Tamils (5) undertaking a massive and broad economic development program in the Tamil majority districts in the north and east (6) recruiting more Tamil speaking law enforcement officers and civil servants (7) establishment of an authority reconciliation and language rights etc.

While touching the above issues, including the 'militarization of the north', the pro-LTTE lobby in Washington and New York found inroads into the thinking of the American lawmakers, US State Department officials and Mr. Obama's point person for human rights in the White House Ms. Samantha Power on issues that have penetrating effect, such as war crimes, violation of IHL and IHRL, on the body politic of Sri Lanka. The House Resolution gives more emphasis to those issues.

The West's Design

Western nations, prominently led by the United States, since the defeat of the Liberation Tigers of Tamil Eelam (LTTE/Tamil Tigers) 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.

The initiative was well taken by the U.S. State Department in maintaining a rapport with pro-Eelam elements in the U.S. which obviously encouraged them to lobby U.S. lawmakers providing them with 'information' about the 'genocidal Sri Lankan regime' which led to many representations by Congressmen to the Office of U.S. Secretary of State urging Hilary Clinton to bring pressure on the GSL for an accountability process of its execution of the war between January through May 2009.

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 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.

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Publication:Asian Tribune (India)
Geographic Code:9SRIL
Date:Sep 17, 2012
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