Palestine and Israel, International Law and Sri Lanka’s Grim Experience
Photo courtesy of Wikipedia
Recent events in the Middle East have left people throughout the world horrified, especially since so many of the injured and killed have been children. Those with widely varying backgrounds and beliefs have joined together in calls for an end to the Israeli armed forces’ deadly onslaught on Palestinian residents of Gaza as well as condemning mass murder and kidnap of Jewish people in Israel by Hamas fighters. The human cost has been terrible and continues to mount while escalating militarism has made it harder to find a just and humane way forward.
In late October, the UN General Assembly adopted a resolution calling for an “immediate, durable and sustained humanitarian truce leading to a cessation of hostilities” and the humane treatment and “immediate and unconditional release” of all civilians being illegally held captive.
UN relief workers have been trying to help victims, sometimes at the cost of their own lives, while senior officials have pleaded for a ceasefire. The UN High Commissioner for Human Rights, Volker Türk, described how people in Gaza “have been suffocating, under persistent bombardment, mourning their families, struggling for water, for food, for electricity and fuel.” He said that the atrocities perpetrated by Palestinian armed groups and the continued holding of hostages were heinous and constitute war crimes, while the “collective punishment by Israel of Palestinian civilians is also a war crime, as is unlawful forcible evacuation of civilians.”
Unsurprisingly, recent events have struck a chord with many in, or concerned about, Sri Lanka and not just because a handful of Sri Lankans there at the time became victims. Defenceless non-combatants shot or kidnapped, others bombed or left without food, hospitals damaged, fleeing families with nowhere safe to go; although historical circumstances are different, some scenes are grimly familiar. Rallies have been held in Sri Lanka, as in numerous other countries, and politicians and civic society leaders have spoken out, although sometimes clashing on the wider implications of what has happened.
The Sri Lankan state was among those that voted for the resolution, which was adopted by a huge majority at the General Assembly. However the US government, a staunch ally and military backer of Israel (which has long been regarded as a useful regional partner), while pleading for restraint, voted against while the UK abstained.
In early November, President Ranil Wickremesinghe accused the US, of “double standards” in dealing with human rights concerns in Gaza and Sri Lanka. He said of the US and Canada, “they all got together and passed a resolution against Sri Lanka” – a reference to the October 2022 resolution passed by the UN Human Rights Council on Promoting reconciliation, accountability and human rights in Sri Lanka.
This brought swift responses. Human rights activist Ambika Satkunanathan posted on social media, “The standard is not whether the US applies diff laws to SL and to #Gaza, but whether intl law is being violated. Intl law was breached in SL and it is being breached in #Gaza- so says @antonioguterres, so say UN Special Procedures and intl HR orgs. Quite simple really.”
Tamil Progressive Alliance leader Mano Ganesan agreed this was inconsistent. “That’s the western world order. What’s wrong in #Ukraine is right in #Gaza. But before blaming West look at the so called #SriLankan order,” he said. “what is right for Palestinians is wrong for Sri Lanka’s Tamils.”
Days after this, a UN Committee began a general debate touching on longer term issues that continue to get in the way of achieving a just peace. It was Sri Lanka’s representative who introduced the 55th report from the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. Mohan Pierisspoke eloquently of the importance of recognising that all lives are equally of value and safeguarding human rights. That his own government fails to observe these principles did not make this untrue.
Likewise the inconsistency of Russia’s leaders in backing the resolution and condemning the bombing of civilians in Gaza, given their own atrocities in Ukraine, would hardly count as a good reason to leave defenceless Palestinians to their fate. Instead, recent events underline the need not to abandon safeguards but rather push for consistent respect for the safety, rights and freedoms of all.
International law and lessons from the past
The recent Middle East crisis has underlined the importance of international legal frameworks to safeguard civilians and highlighted the fact that the UN, despite its failings, is by no means a tool of the West. Human rights organisations such as Amnesty International too have been willing to challenge regimes across the world, including tracking violations in Palestine, Israel and beyond while humanitarian organisations have helped to spell out laws governing armed conflict.
There are two major bodies of law, with some overlap, which may be relevant in violent situations. International humanitarian law (IHL) applies during armed conflict and covers the conduct of both state and non-state groups while human rights law applies in peacetime too, usually to states although when a non-state armed group has stable control of territory, so can act like a state authority, its human rights responsibilities may be recognised.
Acts of violence against civilians, as well as indiscriminate attacks, are unlawful under IHL while precautions must be taken to minimise civilian casualties. Collective punishment is ruled out.
Some serious violations may be regarded as war crimes, incurring individual criminal responsibility, including cruel treatment or torture, intentionally directing attacks against the civilian population and intentionally launching an attack in the knowledge that this will cause incidental loss of life or injury to civilians which would be clearly excessive in relation to the military advantage anticipated. Crimes against humanity (which may also occur in peacetime) involve large scale violence, which may include murder, forcible transfer, persecution on political, racial, cultural or religious grounds and enforced disappearances. Genocide, in which there must be a proven intent to physically destroy a national, ethnical, racial or religious group, not just culturally destroy or disperse it, can be hard to prove
Particularly brutal conflicts over the years have helped to clarify how international law can and should be applied during armed conflict. This includes legal assessment of events over several decades in Sri Lanka, especially in 2008-9 when thousands died and both government forces and the LTTE were accused of multiple abuses.
A 2011 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, sometimes known as the Darusman report, found “credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.”
While there are distinct differences, for instance around territorial responsibility, there are also important parallels to current events and a reminder that some of the excuses which those at war may make for harming non-combatants are not legally adequate. A range of alleged violations of international humanitarian law in the Israel-Palestine conflict have recently been identified to historical abuses in Sri Lanka.
Leaders of other countries who have provided assistance which has, predictably, enabled violations may also risk legal action. Human Rights Watch has highlighted that those supplying weapons to Israel or to Palestinian armed groups risk complicity in grave abuses. The governments of the US, UK, Canada, Germany and Iran may be acting unlawfully. International law has perhaps become tighter on aiding and abetting.
Awareness of need for constraints on use of power
As experience in Sri Lanka, Palestine, Israel and several other countries has shown, international humanitarian law and human rights law are not simply dry legal frameworks but rather have arisen as a compassionate response to human suffering and expression of hope. Another sobering lesson of Sri Lanka’s past is that disregarding the rules governing armed conflict, far from protecting “our” communities against “them”, can end up leaving almost all non-combatants less safe as well as damaging what is best in cultures and societies. There can also be serious repercussions for neighbouring countries and sometimes those further off in an interconnected world.
Perhaps the blatant cruelty and unlawful nature of much of what is happening in the Middle East at present and strength of international opposition, among ordinary people as well as at government level, may serve as a check on the worst abuses. This may also open up hopes for a just peace even if this requires a difficult reckoning with longstanding injustices and inequalities as well as urgent current issues. International law on its own may not be enough but it can play a part in helping to curb what is bad and promote a sense of connection and mutual responsibility for one another’s protection at national, regional and global level.