Exclusive

'War is not illegal

... but the conduct of it might be':

War is not illegal but the conduct of it might be, says Sir Desmond de Silva, QC, eminent Sri Lankan-born British lawyer and member of the International Advisory Council assisting the Disappearances Commission, pointing out that though International Law recognizes civilians do die in war, if the deaths are excessive, in relation to the military advantage anticipated, this may amount to a war crime. Calling the issue a 'very finely balanced' one, he however says it is premature to comment on issues such as if the evidence before the Disappearances Commission so far indicates charges of war crimes.

In an exclusive interview with the Sunday Observer, the eminent QC, while explaining the support extended by the Advisory Council to the Paranagama Commission, is hopeful the Council's report, when tabled, would help dispel a number of misconceptions and rectify errors, facilitating genuine reconciliation.

by Manjula Fernando

Excerpts from the interview:

Q: Along with Sir Geoffrey Nice and Professor David Crane you were appointed as legal experts to the commission investigating disappearances in August 2014. Do you believe this Commission fulfills the international or UN standards?

A: I am glad you have asked me this question as there seems to be some confusion in certain quarters as to the precise function of the International Advisory Council and its relationship with the Commission on Disappearances.

I have refused to give interviews up to now and have made this one exception because of the confusion I have referred to. It is important to understand why it was that Sir Geoffrey Nice, Professor Crane, and I were appointed.

It was to assist the Paranagama Commission in dealing with some of the most complex areas of international law that fell to be answered by the Commission.

These complex questions arose from Government Gazette No. 1871/18 of the 5th July 2014, which raised issues in relation to the laws of armed conflict, which went to the heart of accusations that had been made in relation to the violations of the laws of war by the Darusman Report, NGOs and the UNHRC itself.

Every one of the questions posed engage international Humanitarian Law, International Human Rights Law and Customary International Law.

As regards UN standards, Sir Geoffrey, Professor Crane and myself, have all had considerable experience in International Humanitarian Law, International Human Rights Law and Customary International Law.

We all practised before international criminal courts, either set up by the Security Council of UN or were UN sponsored courts dealing with war crimes and the like. Because of our previous experience, we were attached to the existing Paranagama Commission, which was investigating disappearances. That Commission is heavily burdened with almost 20,000 complaints that Justice Paranagama and his colleagues are valiantly trying to deal with. For our part both Professor Crane and I were personally appointed as Chief Prosecutors of an international court, and indeed all three of us had the experience of prosecuting heads of state.

Sir Desmond de Silva awards UN Medals to UN Peacekeeping Troops on behalf of UN Secretary General

Thus, the Advisory Council, of which I am the Chairman, is able to bring its practical experience of international practice to assist the Paranagama Commission in its important task of dealing with vital issues that are likely to surface in Geneva.

Q: You are reported to have been associated with the sittings of the Disappearances Commission. Has there been any evidence leading to charges of war crime?

A: We are not involved in the sittings of the Paranagama Commission as regards listening to evidence. The International Advisory Council was not appointed to participate in enquiries being made in the North and the East as to the circumstances in which people disappeared.

We were appointed to deal with certain specific questions set out in the Government Gazette. They involve questions such as what amounts to collateral damage in International Law. Collateral damage, sadly, usually means the death of civilians.

Who are civilians in International Humanitarian Law? In what circumstances can a civilian lose his protected status and thus be a legitimate target? Are non-States such as the LTTE subject to International Humanitarian Law?

To what extent and in what circumstances is international law violated by the use of suicide bombers in war? How does the accusation of genocide stand up against the principles in the most recent case of Croatia v. Serbia before the International Court of Justice?

Judgment in that case was only given this year. No Fire Zones, did they in fact exist as a matter of international law as the LTTE never acknowledged them? This is just the tip of the iceberg!

Every one of these questions engages International Humanitarian Law (the Law of Armed Conflict), International Human Rights Law, and Customary International Law. As you appreciate, these are very specialist areas of law. For example, sitting with the members of the Paranagama Commission in Jaffna, who have to hear evidence of sad instances of the disappearances of people, does not assist to the right legal decision in relation to the sort of questions I have just mentioned. So in the end, the Report will, in effect, will be an amalgam of the work of the Paranagama Commission and the work of the Advisory Council.

War is not illegal but the conduct of it might be. Before the First World War 90% of the people killed in war were soldiers. From the Second World War onwards 90% of the people killed in war are civilians.

International Law recognizes that civilians do die in war. If the death of civilians is excessive, in relation to the military advantage anticipated, that may amount to a war crime. However, as long as the target is a justifiable military one, then the incidental civilian death is permitted as long as it are not excessive in relation to the value of the anticipated military target.

These are very finely balanced issues. The reason I have gone into these matters at a little length is in order to answer the question which is sometimes posed, "why are they (the Advisory Council), not sitting with the Paranagama Commission in Trincomalee or elsewhere?"

Our job is to make sure that the principles of International Law, about which sometimes there is some disagreement, are focused on the findings of the Paranagama Commission or are brought to bear on certain facts that are already in the public domain.

Let me give a further example. Was the Darusman Report accurate in the conclusions it came to? Was there a failure in that Report to properly apply the principles of International Humanitarian law, international Human Rights Law and Customary International Law?

Was the result of such a failure, if any, injurious to the reputation of the Sri Lankan Armed Forces or, for that matter, the LTTE?

With regard to the evidence leading to charges of war crimes, it is premature to comment on issues of that kind. In relation to the issue of accountability, one of the matters that we are addressing is whether the situation in every post-conflict state is unique, and, therefore, requires the fashioning and modification of transitional justice mechanisms in order to suit the situation and serve the interest of peace and reconciliation.

Q: How do you differentiate the present task from your previous role as UN Chief War Crimes Prosecutor in Sierra Leone or most recently in Syria?

A: The task I have in Sri Lanka together with my colleagues, is different to my other roles. When I was in Sierra Leone, I was the Chief Prosecutor personally appointed by Kofi Annan, the then Secretary General of the United Nations.

When I was in the Middle-East last year, it was to interrogate an alleged defector who was working for the Assad regime who claimed to have 55,000 images of people tortured and killed by the regime. The report of which I was Chairman ended up in the Security Council.

The role of the Advisory Council in Sri Lanka is to ensure that International Law is properly applied to the issues that have to be dealt with by the Commission

Q: Is Sri Lanka on the right path to reach reconciliation?

A: I sincerely hope so. I also hope that when our report is tabled that a number of misconceptions will be dispelled and errors rectified. It is necessary that this is so before reconciliation can properly take place.

Mistaken ideas perpetuated do not serve the cause of peace. Above all, there must be a willingness to put the past behind and move forward into a sunlit future for all

Q: Justice Paranagama says the Commission has concluded hearings on a little over 2000 cases so far. With over 19,000 complaints to be heard in total what can be done to expedite the process?

A: As I have already indicated the International Advisory Council is not involved in the hearings conducted by Paranagama Commission. They have made certain important findings of fact that assists us in coming to certain conclusions as to the operation of international law.

We are provided with some of the evidence taken by the Commission during its sittings in so far as it helps to shed light upon certain legal issues. Justice Paranagama and I meet from time to time to discuss the impact of international law upon on facts as found by the Commission.

Justice Paranagama and his able colleagues, Madam Suranjana Vidyaratne and Madam Mano Ramanathan are wrestling valiantly with their huge caseload of complaints. It is not for me to suggest how their task is best expedited.

Q: Already Sri Lanka is facing serious allegations of war crimes. Can Sri Lanka initiate a South African style Truth Commission or it is more appropriate to go for a model like in Sierra Leone, to redeem itself?

A: Making allegations is one thing, proving them is another. As to the question you have asked, the Government of Sri Lanka must choose the method it believes suits the country best. In Sierra Leone whilst I was the Chief Prosecutor, we also had a Truth and Reconciliation Commission as well as a Court.

I have considerable experience, as does Professor Crane, in working within such a combined system. In South Africa, the Government there adopted a Truth and Reconciliation Commission without prosecutions. State practice is a part of Customary International Law. Thus, the Government of Sri Lanka has the full range of mechanisms available to it.

Q: You are a person of Sri Lankan origin. Will this amount to a conflict of interest vis-a-vis the task that you have been entrusted to perform?

A: In the 50 years I have spent in the law, which includes practising in many jurisdictions of the world and also sitting in a judicial capacity in England, one learns to put personal feelings or background aside and approach the matters in hand applying the law.

International Law remains the same whether I was born in Sri Lanka or not. Anyone who discharges judicial or semi judicial functions is trained to put aside personal feelings or preconceived views and bring in a decision on the facts and the applicable law.

That is what your training teaches you. Everybody has got to be born somewhere and is entitled to his or her views. To look for someone with no views on public affairs or events is to look for a halfwit or a zombie. Thus being born in Sri Lanka, of which I am immensely proud, presents no problems of any kind.