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Human Rights &
Humanitarian Law
Nadesan Satyendra, 1998
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Tribute
- It is impossible for me to write this introduction to Human Rights and
Humanitarian Law without first paying tribute to the contribution made by my
father,
Somasunderam Nadesan Q.C. in the island of Sri Lanka. His life, his
dedication to the cause of human rights and his writings continue to
inspire, more than two decades after he passed away. |
Introduction
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“...There are victims, there are executioners, and there are
bystanders... Unless we wrench free from being what we like to call
‘objective’, we are closer psychologically, whether we like to admit it or
not, to the
executioner
than to
the victim...”
Howard Zinn quoted by David Edwards in 'The Difficult Art of Telling the
Truth', 2001 |
"You who live safe
In your warm houses,
You who
find, returning in the evening,
Hot food and friendly faces:
Consider if this is a man
Who works in the mud
Who does not know
peace
Who fights for a scrap of bread
Who dies because of a yes or
a no.
Consider if this is a woman,
Without hair and without name
With no more strength to remember,
Her eyes empty and her womb cold
Like a frog in winter.
Meditate that this came about:
I commend
these words to you.
Carve them in your hearts
At home, in the
street,
Going to bed, rising;
Repeat them to your children,
Or
may your house fall apart,
May illness impede you,
May your
children turn their faces from you."
(Primo Levi,a survivor of Auschwitz in 'If this is a Man/The Truce')
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Human rights and humanitarian law have acquired a special significance for
the Tamil people. The Tamils are a
Fourth World nation - a nation without an internationally recognised state. Existing states do not readily
surrender control of territory which they claim as their own - and not
surprisingly, they find common cause in securing each other's territorial
boundaries.
The Tamil people, like many other peoples of the
Fourth World, have often turned to the growing body of
international human rights law and
humanitarian law, and to non governmental
organisations for support for their struggle against alien rule and for
recognition as a people with the right to freely determine their political status. Again, hundreds of
thousands of Tamils have fled the land of their birth, sought political asylum
and turned to the
international refugee conventions for protection.
At the sametime the Tamil people are mindful that -
"...International law is political. There is no escape from
contestation. Hard lessons indeed for lawyers who wish to escape the
indeterminate nature of the political. For those willing to endorse this the
opportunities are great. The focus then shifts to interdisciplinarity and
the horizontal networks which function in practice in ways rendered
invisible by many standard accounts of law... We must abandon the myth
that with law we enter the secure, stable and determinate. In reality we
are simply engaged in another discursive political practice about how we
should live.." -
Dr Colin J Harvey
Reason is not without force...
None the less reason is not without force - not least, perhaps, because
liberal democracy has need to nurture its liberal foundation. If revolution is
to be avoided, conscious evolution may be necessary.
The end of the Second World War saw the birth of the United Nations
Organisation. The United Nations Charter (signed on 26 June 1945) proclaimed the
determination of the Peoples of the United Nations 'to save succeeding
generations from the scourge of war, which twice in our lifetime' had brought
untold sorrow to mankind.
It is a matter for irony, that this 'untold sorrow to mankind' was the result
of two wars between the so called 'developed' states of the 'First' World - wars which witnessed the barbarism of the Jewish holocaust
and the nuclear terrorism of Hiroshima and Nagasaki.
On 9 December 1948, the United Nations General Assembly unanimously adopted
the Convention on the Prevention and Punishment of the Crime of Genocide. The Universal Declaration of Human Rights
was adopted and proclaimed by the General Assembly of the United Nations on the
following day - 10 December 1948. The order is not without significance.
Human rights and self determination...
Twelve years later the UN General Assembly Declaration on the Granting of Independence to Colonial
Countries and Peoples 1960
declared:
"The subjection of peoples to alien subjugation, domination and
exploitation constitutes a denial of fundamental human rights, is contrary
to the Charter of the United Nations and is an impediment to the promotion
of world peace and co-operation." and added
"All peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development."
Eighty nine states voted for the resolution and none against. But
significantly, there were 9 abstentions viz: Australia, Belgium, Dominican
Republic, France, Portugal, Spain, Union of South Africa, United Kingdom, and
United States. It seems that erstwhile colonial rulers were reluctant to
recognise the right to freedom of those whom they had ruled for more than a
century.
In 1962, the General Assembly Resolution on Permanent Sovereignty over Natural
Resources underlined the economic aspect of the principle of self
determination.
Today, some legal scholars contend that the right of self determination is a
part of the jus cogens. There are others who would limit the right to self
determination to 'colonial situations' and they find support from
those countries who abstained from voting on the UN General Assembly Declaration
on the Granting of Independence to Colonial Countries and Peoples 1960, and who
are now engaged in attempts to limit the legal right of self determination to those earlier
colonial struggles.
Compelled to reconcile themselves with the success of the
colonial struggles for freedom, these countries now propound the theory of
'internal' self determination and seek (in the name of stability) to preserve
the territorial boundaries of the patch work states of the fourth world. Former colonial rulers and
those to whom they had transferred state power, now find common cause in
protecting existing state boundaries.
However, the right of self determination and democracy are closely interwoven. If
democracy means rule of the people, by the people, for the people, then
democracy also means that no one people may rule another. Every people have the
right to freely determine their political status. The right of self
determination provides the framework within which democracy may flower.
It this right of self determination that finds pride of place as Article 1 in
the International Covenant on Civil and Political Rights drafted in 1966.
The Covenant was ratified by the required number of states, ten years later in
1976; and those States who signed the Optional Protocol to the Covenant on Civil and Political Rights
agreed additionally to allow the Human Rights Commission to investigate and
judge complaints of human rights violations from individuals from such States.
The paper presented by Scott Crawford & Kekula Bray-Crawford (of the
Nation of Hawai`i), at the Internet
Society Conference in 1995, provides a thought provoking analysis on Self Determination in the Information Age.
The Commonwealth Heads of Governments made their own declaration of
principles, first in Singapore and later in 1991 in Zimbabwe and emphasised the developmental aspects of
fundamental rights.
Denial of the right to self determination, armed conflict and genocide...
During the years since the end of Word War II, the denial of the right to
self determination, and the rule of one people by another, has often led
to armed conflict and genocidal massacres.
| "The reinstatement of the right (to self determination) in post
colonial society, the more detailed specification of its different forms
(such as the varied types of regional autonomy, and of federative and
other association) and the conditions of its exercise in a decolonised
world are an urgent priority in the prevention of genocide."
(International Action Against Genocide - Minority Rights Group Report No.53 - Professor Leo Kuper) |
The genocidal onslaught on the Tamil people by the Sinhala dominated Sri Lanka
state served to illustrate the truth of Jean Paul Sartre's assessment in 1967 at the Bertrand Russell International
War Crimes Tribunal :-
"Against partisans backed by the entire population,
colonial armies are helpless. They have only one way of escaping from
the harassment which demoralises them .... This is to eliminate the civilian
population. As it is the unity of a whole people that is containing the
conventional army, the only anti-guerrilla strategy which will be effective
is the destruction of that people, in other words, the civilians, women and
children..."
And there may an increasing need to attend to the words of of Yelena Bonner
(widow of Andrei Sakharov) that "the inviolability of a country's borders
against invasion from the outside must be clearly separated from the right to
statehood of any people within a state's borders."
Humanitarian law and military necessity...
The Universal Declaration of Human Rights did not outlaw rebellion against
tyranny and oppression. It proclaimed that human rights should be protected by
the rule of law so that man is not compelled to rebel against tyranny and
oppression.
"Whereas it is essential, if man is not to be compelled to have recourse,
as a last resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law..."(Preamble to the
Universal Declaration of Human Rights, 1948)
And where man, as a last resort, does rebel against tyranny and oppression,
the Geneva Conventions 1949 and the Additional Protocols 1977, sought to
regulate armed conflicts according to the rules of humanitarian law. Many have
regarded the attempt to 'humanise' armed conflict, with some scepticism.
As wars have become more and more 'total', it has become increasingly
difficult to separate the contributions of 'civilians', the 'para military', and
the 'military' to the war effort and the distinction between combatants and non
combatants has been observed, more often than not, in the breach. In armed conflicts since 1945, 90 percent of casualties have been civilians
compared to 50 percent in the Second World War and 10 percent in the
First.
As Hiroshima and Nagasaki showed, military necessity often prevails over
humanitarian considerations. On 8 August 1945, the victors of World War II
signed, in London, an Agreement for the prosecution and punishment of major
German war criminals. On the same day, the United States dropped its second
atomic bomb on Japan, (indiscriminately) killing more than 70,000 of the largely
civilian population of Nagasaki.
"How could I ever forget that flash of light!
In a moment thirty
thousand people ceased to be
The cries of fifty thousand killed
Through yellow smoke whirling into light
Buildings split, bridges
collapsed
Crowded trams burnt as they rolled about
Hiroshima, all full
of boundless heaps of embers"
- Toge Sankichi: Hibakusha (A-bomb survivor) in
Hiroshima & Nagasaki - the Worst Terror Attack
in History
Today, those states which have stockpiled nuclear bombs, recognise only too
well that their use will contravene the humanitarian norms proclaimed in the
Geneva Conventions and have been slow to ratify the Additional Protocols. But this has not
prevented them from
declaiming loudly against the production of 'weapons of mass destruction' by
those that do not belong to the nuclear club.
At the same time, it has to be said that the humanitarian law of armed
conflict is not something imposed on the world international system from outer
space but has grown out of the general interests of states and the special
interests of their armed forces. These interests include the need (atleast, to
be seen) to act in accord with widely held ethical beliefs and in this way gain
popular support (both within their own countries and outside), and also the fear
of opening the floodgates to uncontrolled retaliation by the enemy - with
possible adverse military consequences.
Cynics will point out that more often than not, the concern of states is to
be 'seen' to be acting according to law, and that states, with their enormous
resources, are able to
manage the media, 'sanitise' news, put a 'spin' on that which is published,
suppress information of their misdemeanours, and in this way justify their
actions and manufacture popular support for their military adventures. The war
in Iraq in 1990 and again in 2003 and the International War Crimes Tribunal's Judgment on US war crimes in Iraq, are
perhaps cases in point. Sri Lanka's control on the media's access to the war front is another.
Having said all that, the international law of humanitarian conflict does
provide a standard of conduct which combatants have need to address when they
act - and, in this limited way, humanitarian law acts as a restraint on
that which combatants may otherwise do with impunity.
Again, in a more fundamental sense, a commitment to human rights and
humanitarian law will strengthen the hands of all those who believe that means
and ends are inseparable and who are concerned with securing political change in
such a way that the essential goodness in each one of us may find settled expression.
International Criminal Court...
The Rome Statute of the International Criminal Court which was signed on 17
July 1998 represented a step towards bringing the force of international law to
bear against those who commit genocide and crimes against humanity. The Staute
entered into force on 1 July 2002. The United Nations Secretary General declared
at the signing ceremony in Rome:
" This is indeed a historic moment. Two millennia ago one of this city's
most famous sons Marcus Tullius Cicero, declared that 'in the midst of arms,
law stands mute'. As a result of what we are doing here today, there is real
hope that that bleak statement will be less true in the future than
it has been in the past. Until now, when powerful men committed crimes
against humanity, they knew that as long as they remained powerful no
earthly court could judge them..."
However,
the roll call of
the vote in Rome
revealed the continuing interplay between real politick
and human rights.
Amnesty International
stated that it
'was disappointed that a few powerful countries appeared willing to hold
justice hostage by threatening and bullying other States and were all along
more concerned to shield possible criminals from trials rather than
producing a charter for victims'.
120 countries voted in favour of the statute, 7
against, and there were 21 abstentions. The United States voted against
the statute and refused to recognise the jurisdiction of the
International Criminal Court in respect of individuals who may be charged
with crimes against humanity. It also questioned the right of the Court to act
independently of the United Nations Security Council. That India and China
joined the United States in opposing the Rome Statute reflects, perhaps, the
shared interests of aspiring world powers. These shared interests are apparent
in the
explanations given
by each of these countries for their vote. Thomas M. Franck & Stephen H.Yuan commented in International Law & Politics in 2003:
"... Though the United States initially supported the
movement to establish the ICC, it has since become its most
prominent critic, arguing that it might subject Americans to
baseless, politicized prosecutions... As the most powerful
nation in the world, the United States has an opportunity,
through participation in the Court, to advance respect for
individual human rights and the rule of law. Such
institution building has its risks, but without it, every
crisis must be faced de novo and, too often, alone. Finally,
the unipolar system in which the United States currently
operates is extraordinarily unlikely to persist. As such,
U.S. policymakers should be guided not only by the immediate
costs and benefits of U.S. policies on the interests of also
by how these strategies will affect the United States in
what is likely to become, in time, an increasingly multipolar world. It is a shrewd investment for those with a
surplus of ready power to invest some of it in institutions
of manifest fairness, for they will need to rely on law and
fairness when their power no longer suffices to achieve
their ends. "
Here, it is not without significance that Sri Lanka abstained at the votee on
the ICC in 1998.
The stated reason
for the abstention was that the 'crime of terrorism' was not included in the
Statute. But, Sri Lanka may have been concerned that the statute included
genocide,
crimes against humanity, war crimes, as well as the crime of aggression
(once an acceptable definition for the Court's jurisdiction over it is adopted).
The Rome Statute also provides for an independent prosecutor who may initiate investigations and proceedings.
Non governmental organisations and their role...
During the past ten years and more, reports by Amnesty International, the Peace Brigades International, the British Refugee Council's Sri Lanka Monitor, the International Red Cross, the U.S. Committee for Refugees , Human Rights Watch, Asian Human Rights Commission
and other non governmental organisations have helped to bring the
human rights issues and the humanitarian law aspects of the
struggle for Tamil Eelam to the attention of the world community. The web
site maintained by the Union of International Associations provides a helpful list of
international NGOs.
At the same time, these non governmental organisations function within the
framework of the existing world order and their actions often appear directed to
secure that order. John Harrington's essay titled ' The Media, Framing, and the Internet: Dominant Ideologies Persist' is not
without relevance to the role of non governmental organisations engaged in the
'human rights' industry.
| "the maintenance of order is the key idea to be examined...
in earlier times violence and the threat of physical force was used to
maintain order. But today control is pursued through very different
avenues; most effectively.... through cultural control, or ‘controlling
the common sense’.... the dominated are encouraged to see the world as
the powerful do..." |
The weakness of the approach adopted by many non governmental organisations
is that they choose to address symptoms rather than causes - they seek to change
behaviour without addressing the underlying reasons for that behaviour.
Non Governmental Organisations may be consciously or unconsciously contributing
to a hegemony which is secured not by imposing a uniform conception of the world
on the rest of society, but by articulating different visions of the world in
such a way that their potential antagonism is
neutralised - and the status quo protected.
For instance, Amnesty is quick to point out, that its remit does not extend to addressing
the rights and wrongs of an armed conflict. Amnesty says that it does not
take sides. But if you do not take sides where a government
has so oppressed a people that that people have, as a last resort, justifiably taken arms to resist that oppression, then you end up by making
pious pleas to the very same government which is intent on subjugating that
people. Amnesty's recommended action to send courteous letters to the Sri
Lanka authorities may well appear to the Tamil people somewhat like
sending courteous letters to the fox to look after the 'rights' of chickens
in the chicken pen. The exchange of letters between the LTTE and Amnesty in respect of the
Kallawara incident in 1995 is illuminating.
Given this context, it remains a matter for regret that the application of
the
Tamil Centre for Human Rights to be accorded consultative status at the UN
Human Rights Commission was rejected in May 2000.
Indictment against Sri Lanka documents the systematic violations of the
fundamental rights of the Tamil people in the island of Sri Lanka. The record
covers a period of more than four decades. In addition,
 Sri
Lanka Accused at the United Nations documents hundreds of statements and
interventions by
non governmental organisations, as well as Resolutions, and Reports by
Special Rapporteurs at the United Nations Commission on Human Rights and the
United Nations Sub Commission on the Prevention of Discrimination and Protection
of Minorities, covering the period from 1983 to date.
The reports of the University Teachers for Human Rights (Jaffna Branch) have
attracted controversy, but nevertheless the matters that they have raised will
need to be addressed by any struggle committed to securing freedom for the Tamil
people.
Susan Wolfson has made a study of children's rights in the context of the
conflict in the island of Sri Lanka. Child Soldiers and the Law
surveys the current international law relating to the recruitment of children
into the armed forces and concludes that a double standard is no legal standard
and cannot be passed of as such. Child Soldiers? What Child Soldiers?
serves to expose the actual state practise of state signatories to the Geneva Conventions Additional Protocols of 1977, the
International Convention on the Rights of the Child, 1989 and the
Optional Protocol to the Convention on the Rights of the Child, 2002.
Useful databases of information relating to the conflict in the island of Sri
Lanka may be found at INCORE and at Derechos: Human Rights - Sri Lanka. In addition, comprehensive databases on
human rights issues are available at the United Nations High Commissioner for Human Rights), Diana Project, the Center for the Study of Human Rights at Columbia University
and at the University of Minnesota Human Rights Library. |
