The human rights to food, medicine and medical supplies, and freedom from arbitrary and inhumane detention and controls in Sri Lanka.

• Author: Paust, Jordan J.

1. INTRODUCTION

   Are the denial of adequate and available food and the denial of adequate and available medicine and medical supplies violations of human rights law? This Essay demonstrates that such denials are not only violations, but are quite serious violations of basic human rights. Such denials of food or medicine and medical supplies tend to be among the most egregious types of human rights violations, since those who can least afford to suffer tend to be victims. Usually only the poorest of the poor, the displaced, the infirm, the disabled, and children suffer from such calculated or foreseeable inhumanity. The denial of food or medicine and medical supplies can lead to slow, painful, inhumane deaths--not among enemy combatants and official elites, but among the poor, the disadvantaged, and children. It is particularly egregious for any person to use the denial of food or medicine and medical supplies as a governmental tactic or political weapon. All such denials must be exposed and opposed. It is most appropriate and necessary that future U.S. Department of State Country Reports (Country Reports) address such egregious human rights violations in Sri Lanka and wherever else they occur.

   In a given context, denials of these types also violate related prohibitions under the laws of war termed "human rights in times of armed conflict" and constitute serious war crimes. It has long been recognized that there is a "civil war" occurring in Sri Lanka that has reached at least the level of an insurgency(1)--thus implicating common Article 3 of the 1949 Geneva Convention (common Article 3)(2) and Additional Protocol II (Protocol II) thereto.(3)

   Common Article 3 reflects customary international law,(4) and several tenets of customary international law are mirrored in Protocol II.(5) Human rights norms are also mirrored in the Geneva Conventions. For example, common Article 3 requires that the government treat "humanely" all those "taking no active part in the hostilities.(6) Moreover, common Article 3 expressly provides that it shall be prohibited "at any time and in any place whatsoever with respect to the above-mentioned persons" to engage in "cruel treatment" of such persons as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."(7) The protections found in common Article 3 and in Protocol II reach a state's own nationals.

   In case of an armed conflict of an international character, common Article 3 continues to apply as a customary set of minimum standards.(8) With respect to co-nationals, however, Articles 4 and 13 of the Geneva Civilian Convention limit additional direct protections to those protections covered in Articles 13 through 26.(9) As explained below, there are several allegations and recognitions with respect to the denial of food, the denial of medicine and medical supplies, and the denial of freedom from arbitrary and inhumane detention and controls, implicating common Article 3 and Articles 16, 23, and 24, as well as various articles in Protocol II. Moreover, if specific intent to commit these types of denials is shown, the denials can even constitute international crimes of genocide,(10) These international crimes implicate not merely individual responsibility, but also the duty of the government to seek out, arrest, and initiate prosecution or extradition of those reasonably accused of such crimes.(11)

   Are arbitrary and inhumane detention and controls of individuals or groups of persons human rights violations? They are, although legal standards are related to terms such as "arbitrary," "unnecessary," and "strictly required." Additionally, there are human rights protecting the freedom to leave one's country and to seek asylum in foreign lands. Liberty and freedom of movement are not absolute, but there are significant limitations to what restrictions government can impose, even in the case of civil war. Moreover, those detained or controlled are entitled to certain rights specified in human rights instruments, including the Geneva Conventions. As noted, violations of the Geneva Conventions are also crimes implicating individual criminal and governmental responsibilities.

   As demonstrated in this Essay, there are serious allegations and significant recognitions of human rights violations in Sri Lanka relating to the right to adequate food, the right to adequate medicine and medical supplies, and the right to freedom from arbitrary and inhumane detention and controls. Such denials are sustained by governmental censorship, denials of access to certain areas for investigative purposes, and intimidation of nongovernmental organizations (NGOs), which in turn involve violations of the human right to transnational freedom of speech. Moreover, these denials are sustained by the lack of adequate governmental investigations, arrests, and prosecutions of alleged perpetrators--patterns that facilitate an air of impunity. Country Reports certainly should address deprivations of these human rights. To some extent, the Country Reports do address arbitrary and inhumane detention and controls, censorship, and denials of access to certain areas. For example, a section in the 1997 Country Report on Sri Lanka addressing very limited "Violations of Humanitarian Law in Internal Conflicts," demonstrates the interface between general human rights law and human rights in times of armed conflict as well as the propriety of U.S. State Department reporting of such violations.(12) The most egregious violations include denials of food and medicine or medical supplies, especially for children. These violations should at least be addressed in portions of a Country Report otherwise addressing the rights of children(13) and practices of discrimination.(14) It would be most appropriate, however, to address violations of the right to food and to medicine and medical supplies in separate sections. Further, under Article 1 of the Geneva Conventions, the United States, as do all signatories, has an obligation "to respect and to ensure respect" for the Conventions "in all circumstances."(15) One very limited, but necessary, means of ensuring respect is to disclose known and suspected violations of the Geneva Conventions in Country Reports. The 1998 Country Report on Sri Lanka(16) actually focuses on the misuse of food and medicine in a section titled "Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts."(17)

2. THE DENIAL OF ADEQUATE FOOD

   1. The Problem

      There are several serious allegations and significant recognitions of failures of the government of Sri Lanka and its officials, officers, and agents to provide adequate and available food to populations in northern regions, including allegations that crops have been intentionally destroyed. There are also allegations that these failures are often deliberate: that the failure to provide adequate food is used as a political tactic or weapon of war against noncombatants in the northern regions for various purposes. Such purposes allegedly include the intent to break down civilian support processes so that civilians are forced to move to detention centers or government controlled areas; the intent to assure suffering, insecurity, and, thus, instability in various regions; the intent to engage in punishments or reprisals against unsympathetic civilians; and the intent to keep food out of the hands of insurgent forces. There are also allegations that, if not deliberate, the government's failures to provide adequate and available food are the result of government policies pursued in the context of known starvation and malnutrition, despite the high likelihood that such polices will result in further starvation and malnutrition.

      Some of the allegations and impacts are demonstrated in a 1997 report published by the U.S. Committee for Refugees (USCR). For example, the report states: "Many groups and individuals involved with the displaced say that government ministries and the military deliberately withhold or delay supplies for the displaced. That should end."(18) The 1997 USCR report also recognizes that "[m]any people live in fear ... [there] is little employment; most are dependent on food aid"(19) and that "[t]he government's ban on fishing ... reduces the availability of fish, usually an important source of nutrition .... "(20) The USCR further states: "The overall situation for people in the Wanni ... is worrisome. [There is] inadequate nutrition, water, health care, and shelter, all [of which] place the population at risk."(21)

      In a section on USCR Findings, it is recognized that there is some malnutrition and that "a large number of people ... did not have regular access to food and were increasingly vulnerable."(22) Moreover, this section points out that actual transport of food into the region was inadequate and often significantly below government promises and demonstrated needs.(23) The USCR reports that several humanitarian organizations say the government manipulates assistance as part of a political strategy to keep displaced people in need; relief workers say that food is much less than that needed and that the government does not send what it promises.(24) The USCR's formal recommendations state that "[t]ens of thousands of people are at risk because the government will not provide them food aid, allegedly because it views them as sympathetic"(25) to the Liberation Tigers of Tamil Eelam (LTTE), an insurgent group of Tamil people, which has been fighting for self-determination for more than thirteen years.(26) "If the government will not assist these people, it should allow the international community to do so."(27) Denials of food are exacerbated in governmental detention centers.(28) The 1998 Country Report on Sri Lanka notes that government organized convoys of food in 1997 were significant, but "the food situation in the Vanni was serious," adding:

      Experts noticed an increase in anemia and a...