My
presentation will address Human Rights, Humanitarian Law and the Tamil
national struggle.
One of the first lessons we learn at Law School is the following: If
you have the law on your side, argue the law; if you have the facts on your
side, argue the facts; if you have neither the law nor the facts on your
sides, pound the table.
Now one of the problems in this case is that there has been the law,
there have been the facts and there have been the Sri Lankan Governmentand
occasionally others pounding the table so loudly that it has obliterated and
in fact has intimidated people from discussing either the law or the facts.
For instance many of you have heard the term "Human Rights" . What are Human
Rights ? Where are they? How do you know you have Human Rights when you say
I have Human Rights?
The Sri Lankan Government refers to the LTTE as a terrorist organisation.
Is it? Who said so? What's the law? How do you answer that back? A lot of
people talk about Self-Determination. What is it? Where is it ? Do you have
it? Are you entitled to it? How can you defend it? These are problems with
the Law.
Now let us look at the facts for a minute. You have heard eloquent,
fantastic, articulate and eye-witness factual accounts in this conference.
And yet I read many reports and statements by the Sri Lankan Government,
reports of even Non-Government Organisations of allegations, such as "the
LTTE massacred this village" and yet neither the Government nor the NGO
statements ask "How do you know?" "Whose source of information?" "Who
investigated it?" "Who looked to see in fact?" Now we know from experience
that the first victim in war is Truth. However in the Sri Lankan conflict we
do have eye-witnesses and they do speak. And yet there is, internationally,
prominent display of allegations as if making the allegation is the proof .
As far as pounding the table making an unfounded or unverified allegation
is a form of pounding the table. But there are other even more subtle
versions of pounding the table and we have had an experience of that even in
this conference where a newspaper article or disclosure that apparently the
Government of Australia did not want to attend this session because there
sympathisers of the Tamil cause or the LTTE or because certain people who
might have been invited were not invited. That's very subtle because our
first reaction is " Well, free speech - that's an important aspect."
But I can tell you absolutely when Martin Luther King during our Civil
Rights movement in the United States wanted to have a meeting to discuss
racism in America he didn't ask the Klu Klux Klan nor was he ever challenged
for making sure that the voice of the Klu Klux Klan was present at a
discussion on racism in America. When the Democratic Party of the United
States has a Convention they do not necessarily invite the Republicans to
come and present their point of view. Now I'm not saying that a meeting
should be open or should be closed but I do say that meetings, particularly
one with the hostilities that have been experienced by many of us - and I
speak from personal experience - may make one not exactly willing to invite
anyone who would want to come to such a session. I have had to have police
protection when I was 7 months pregnant to go into an academic Conference at
the University of California at Sacremento to discuss the Tamil question
because of rioters outside.
Now let us go back to Human Rights. You have probably already used the
term. In the life of my country the first articulation was "Give me liberty,
or give me Death." A little later in our history in our Civil Rights
movement we said " Before I'll be a slave, I'll be buried in my grave."
The United Nations, however, in its Charter decided it was time to put
those kinds of feelings which we all have in our hearts about what we mean
about Human Rights on paper. The Justice earlier this morning gave an
eloquent description of that process leading to the universal Declaration of
Human Rights in 1948 which in its preamble says : "so that Mankind is not
compelled to have recourse as a last resort to force against tyranny and
oppression, that Human Rights should be protected by the rule of law". Human
Rights are also found in many treaties and covenants signed since.
But in a sense the universal Declaration of Human Rights says it all . It
says we are all entitled to freedom from torture , violations of our right
to life , the right to freedom of religion , freedom of opinion which
includes that we the right to like or dislike any particular group or
faction in any particular conflict . We have the freedom from arbitrary
arrest, we have the right to procedural guarantees, we have the right to
food, shelter and education. And so we have, by the universal the
Declaration of Human Rights, if these are not realised, the right to
recourse as a last resort to the use force against tyranny and oppression .
So that goes a long way in letting us know what is Human Rights. We know at
least that we can pull out a document and read it.
How about the question, "Are the LTTE terrorists? Well, when you read the
universal Declaration of Human Rights it does not address that question.
That's a whole new issue, it brings up a whole new question of law - called
conveniently "Armed Conflict Law" or "Humanitarian Law". First we want to
know "Is there a war in Sri Lanka?' because obviously one side is saying "We
are in a national liberation struggle, we are involved in the use of force
to defend our Human Rights," and the other side is saying "This is
terrorism."
Whether there is a war or not is shown by the objective facts, not by
characterisations or labels. All of you in this room are as legally
entitled, as any one else, to look at the objective facts and decide
whether or not there is a war in Sri Lanka. For instance in the reports
you have seen, if taking only what the Government says do you see the
Sri Lankan military out there somewhere? Do they concede that they used
armed forces? Do they concede that they use airplanes? or boats? Or do
they just say "We are using our Riot police because there are riots and
that's the problem or we have terrorism." I do not want to labour the
point. Obviously there is a war in Sri Lanka.
One of the legal consequences of a war in Sri Lanka is that the military
actions of the opposition are not terrorism - they are acts of war. There
are rules to war as there are rules in Human Rights so that does not mean
that just because one party or another engages in acts of war they are all
legal acts of war . That is another question. But they are all acts of war.
So we have to realise that we are talking about " A war ".
Obviously it is essential to make that realisation if you are going to
have a peace process . A "peace process" is a process to stop a war. You do
not need a peace process if there is no war. I do not want to pound that too
hard. But it is incredible how often in my international travels governments
and sometimes even non-governmental organisations say to me "We have got to
get a peace process" and at the same time they do not recognise, not only
the factual existence of a war because it is not convenient to do so in some
cases, but they also pay no attention to the application of Armed Conflict
law to the situation. How can you stop a war if you do not take into account
its existence ? Or to the rules of war?
There are two basic rules to war. One is, the means of warfare are not
unlimited. You cannot do whatever you want in war. And the other basic rule
is non-combatants have the basic right to be protected from the dangers of
war and they have a legal right to humanitarian aid, food , shelter, medical
assistance. These are in the Hague Convention of 1907 and the Geneva
Conventions of 1949 and 1977 to name a few of the treaties on Armed Conflict
Law. When we fail to use these in our dialogue what happens is that even
when we are arguing for such humanitarian principles as providing rights for
victims of armed conflict such as the 400,000 Tamil civilians that need
medical aid. When the Government says "no' can they legally say "no"? When
in fact the victim has a legal right to that aid under the Geneva
Convention? Can the Government put conditions on what is an absolute right?
No!
But if these issues are not addressed in the context of War then they
become subject to "negotiation" and we end up in a process of negotiating
people's absolute right. And that is wrong.
Now in war there are legal military targets. One of the problems in this
particular war and why the Tamil people have lost some of their credibility
- I have heard this bandied around today and I believe it is true - is
because of mischaracterisation of what a legal military target is by
anti-Tamil interests, especially the Government. I cannot give you today all
the rules of Humanitarian Law regarding military targets. But let me tell
you that shooting down an aeroplane belonging to the armed forces of your
opposition, firing upon enemy soldiers in battle, carrying out a military
operation against a military base of the enemy, attacking economic
installations or infrastructure are all legal military targets with a few
exceptions. As of 1977 you are not supposed to carry out military opposition
against a nuclear installation.
What are illegal military targets? Illegal military targets are actions
carried out against the civilian population in any way, shape or form.
Occasionally however military operation carried out on a military base may
result in civilian casualty. That is not necessarily a violation of the
rules of war. Bombing a city has to be viewed as carrying out illegal
military operations.
Also in Humanitarian Law under the rules of law there are rights of
prisoners of war. In the thirteen years of armed conflict in Sri Lanka how
many of you have ever heard international concern over POW's ? Not a soul.
This is shocking! Why is it that you might not have heard of any? Well, it
may be, particularly on the Government's side, that not many of them come
out alive! But how is it that the international community has not insisted
on the status of POWs in the Sri Lankan conflict?
The status of POWs in the Bosnian-Croatian-Yugoslav conflict is what
prompted the International Tribunal. And this was in the course of a
conflict that was barely minutes old by comparison to the Sri Lankan one.
And making the comparison also points out something very, very important to
know about Humanitarian Law or these Geneva Conventions and the Hague Law.
When you violate the universal Declaration of Human Rights you commit a
violation of Human Rights. When you violate the rules I've just set out in
armed conflict it is a war crime.
The reason there are Tribunals for Rwanda and Yugoslavia is because of
war crimes. I think all of us need to begin to question the failure to
address the fundamental law principles in this conflict. And on both sides I
might say. And also because of the gravity of these violations to make sure
that the international community absolutely insists on full investigation
rather than accepting mere allegations and having convictions based on
allegations.
Now I am going to bring up another point that is rather touchy. I am used
to discussing touchy points. When you deal with Humanitarian Law it is
always touchy. I know it is fashionable these days to require parties in
conflicts to resolve their differences by dialogue and negotiation. Is it
realistic? I should hope so. But there are now 44 wars in the world,
including the one in Sri Lanka, and the parties to those conflicts were not
able to resolve their differences. I am not defending war but I do
understand- as the Judge said this morning - why they are carried out.
Which leads to another touchy question, controversial perhaps. What kind
of war is it in Sri Lanka? This also plays into the issue of dialogue and
negotiation. What kind of war
is it in Sri Lanka? Is it a civil war as some speakers have said or
is it something else? Now the term "self-determination" has come in rather
frequently in our discuss ions in the last two days. We have got to talk a
little bit about that before we can talk about what kind of war it is in Sri
Lanka. Maybe even a little bit of understanding of that may illuminate why
at least at this point dialogue is not occurring.
The International Law of Self-Determination is sticky. I know many Tamils
say we have the right to self-determination - and I agree with that. But
because it is so sticky it is very, very important to articulate exactly
why you have the right to self-determination rather than just saying "We
have the right to self-determination", because I can tell you from immense
experience the international community tends not to like that concept
because they see unitary states breaking apart.
What is the right to self-determination? It is very well enshrined in the
international instruments which you heard this morning from the Judge - it
is in the Charter of the United Nations, it is the first article in each of
the Human Rights covenants. The conventional definition is that it is a
right held by peoples who have a common linguistic heritage and an ability
to self-govern. It used to be that was viewed in the colonial context and
once the coloniser left it was extinguished. Once the coloniser left Sri
Lanka the right to self-determination no longer existed. That is now
becoming old-fashioned. Why? Because of the phenomena that has been
discussed by many speakers.
You know the dilemma of majority-minority. Whether it is the minority
that is in power or the majority, if it is a situation where one or the
other has the power and the other does not then it becomes a very serious
crisis - if the group in power grabs it and runs. So there is a new version
of self-determination and that is: it is held by people or groups who are
subject to apartheid, persecution, discrimination and other violations of
Human Rights by another group whether it is minority or majority which
prevents the affected group from the realisation of Human Rights and
fundamental freedoms.
So obviously in defining self-determination it is important to know other
Human Rights because you have to know if there is a persistent pattern of
the violations. So when you listened to yesterday's speeches outlining the
litany of the failure of the realisation of Human Rights for the Tamil
people what you were hearing was defence for the principle of
self-determination of the Tamil people. Not the old-fashioned one but the
evolving one.
There are always questions in these sticky matters. 1. How bad
does it have to be ? 2. How long does it have to go on ? We can argue in
certain circumstances quite clearly with the situation in South Africa with
apartheid. It was one minute into apartheid too long. The apartheid system
was so inherently in opposition to fundamental Human Rights that it could
not exist even one second before the right to self-determination ripened.
Now in a pattern of Human Rights violations what if the violation is that
you have to sit in the back of the bus. And that's all. It is degrading, but
probably if that were the only violation of Human Rights - that this group
had to sit in the back of the bus - but had equal education, equal
employment, equal participation in government, etc., maybe the right to
self-determination based on that might be not be quite viewed as essential.
Though if I had to sit in the back of the bus I might have a different
opinion.
Now the question of how long? Let's look at the Tamil situation. The
litany that you have heard and the worsening situation certainly would
indicate that from the perspective of a Tamil in Sri Lanka the expectation
that in their lifetime, given normal civil processes, the rights of Tamils
would ever be realised was unrealistic. In 1976, 20 years and one month ago,
the Tamil leadership and the Tamil people decided that the time was up. I
believe you all know the document I am referring to. The Resolution of the
First National Convention of the TULF, 14/5/1976.
Regardless of your opinion of the parties or whatever participants in
it , this document is a statement of the right to self-determination of the
Tamil people which is remarkably well-drafted and clearly and strongly
articulates the defence of self-determination both in the classic sense by
reminding us all of the historic separateness of the two. And in the modern
sense in articulating the litany of the violations.
I agree with this document. By 1976 it was enough. I made a speech - I
think it was 1989 - at the United Nations saying 40 years was enough.
Obviously defending the situation from these points of view leaves one to
experience pounding of tables - and I have had a lot of experience of
pounding of a table, both at the United Nations , with the thousand screams
and threats from even seasoned diplomats and occasionally even from other
NGO's who seem to think that every single conflict in the world ought to be
resolved by peaceful means some of them who also applaud such military
ventures as the United Nations and my Government have been involved with
where we certainly were not interested in waiting for negotiations. My
country has been involved in the last twenty years in six direct military
actions.
In the face of all this what are we to do? You have heard some very
profound and clear and strong statements about what to do. I am not going to
repeat them. I would like to say that anyone of you in any NGO community to
make very, very sure that when allegations are bandied around that if you
repeat them without knowing for sure who did it you will at least indicate
the source of the information that you got so that people can weight the
source of the information as to whether or not its content is accurate. I
know it is hard to be rigorous at all times in a situation where we are
besieged with information.
But it does nobody any good to repeat an allegation as if it were true if
we have not personally investigated it. I do not like to hold myself up, but
I can clearly say that I have never made an allegation in the United Nations
in this situation or any other situation when I have not personally
investigated myself if the facts were true and if I wasn't sure I said so.
Or said nothing till I did know. International governments obviously have to
pressure for cessation of hostilities but they have to do responsibly and
honestly and from the perspective these bodies of law that I have just
discussed .They can condition aid, they can refuse to provide military aid,
they can do all sorts of things but at this point not much is being done.
I would like to talk about what you can do when you do not know
what to do. Not all of us are lawyers with the astounding opportunities
that I have had- for which I am immensely grateful - to present these
issues at the United Nations and at Conferences such as this one, to
governments and lobby them and try to reason with them. A lot of people
feel for the situation but they don't know what to do.
In the fiasco in the former Yugoslavia there was a mortar shell that
attacked a baker and 22 people were killed. The next day there was a cello
player who sat in front of the bakery and played the cello. The next day the
cello player was back. The day after the cello player was back. Pretty soon
a few other people came and played with the cello player. It turned out that
the cello player was a member of one of the orchestras in Sarejevo which no
longer able to function because of the war. So some of the players were
other members and some were just people. So they played everyday in front of
the bakery for 22 days. It seems like not much. But that created an immense
turning point in that war with amazing repercussions. In the city of Seattle
a group got 22 bakeries, 22 groups of musicians who played in front of 22
bakeries. Everyone in Seattle knew about the war in Bosnia, in Sarejevo in a
way that was so graphic and so real and so moving.
All of us in our own way have cellos. But we do not know till we play
them.
