Desmond Fernando,
Presidents Counsel, is the President, Bar Association of Sri Lanka. He
was elected an Honorary Member of International Commission of Jurists
in 2003 and served as a Commissioner from 1988 to 2003. He was a member of
the ICJ's Executive Committee from 1992 to 1995 and served as Vice-President
from 1995 to 2002. |
It is my privilege today to deliver the Peter Pillai Oration. I had the
good fortune of being a student at St. Joseph�s College, when he was Rector.
I was even more fortunate to be his pupil. He taught me Government in the
VIth form.
Father Peter was one of the outstanding men of his generation. He combined a
mind of the most dazzling brilliance with a deep commitment to social
justice.
Father Peter Pillai fought for the rights of the working class and the
under-privileged. On 14th October, 1936, he founded the Catholic Social
Guild and in January 1937, he began the Journal �Social Justice�. In the
very first issue he stated, �we repudiate most emphatically the
laissez-faire theory of economic liberalism, which claims for the employer
the right to make the maximum of profits at any wage that the workman is
willing to accept..........�
Father Peter was strongly committed to Human Rights. It is thus perhaps
apposite that I should talk to you today on the theme of Human Rights and
Terrorism.
Terrorism
Terrorism is a widely used word. However, the question arises as to what
terrorism means. Can the term be defined and if so, would the definition be
an acceptable one? I have looked for the answer to this question in a number
of books and laws.
Professor Charles Townshend in his treatise on Terrorism published by
the Oxford University Press begins with these words. �Terrorism upsets
people. It does so deliberately. That is its point.
� The whole question of terrorism was brought to the forefront on
11th September, 2001 with the destruction of the twin towers in New York
and the killing of almost 4000 people. This was followed by President
Bush declaring �a war against terror�.
The world finds itself after September 11th in an apparently open ended
and permanent state of emergency.
Both political scientists and lawyers have tried to define terrorism. They
distinguish terrorism from criminal violence or military action. However,
there is no accepted definition of terrorism or terrorist. Why is this? It
is because terrorist is a label. It has never been voluntarily adopted,
except with one exception by any individual or group. It has been applied to
them by others. Generally by the governments of the States they attack. Sri
Lanka has a
Prevention of Terrorism Act but the Act has no definition of Terrorism.
However, the United Kingdom has been more ambitious in this regard. It
defines Terrorism for the purpose of the
Terrorism Act 2000 as follows:-
(1) In this Act �terrorism� means the use or threat of action where:
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.
(2) Action falls within this subsection if it �
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person�s life, other than that of the person committing
the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.
On the other hand the USA defines it as a calculated use or threat of
violence to inculcate fear, intended to coerce or intimidate governments or
societies.
Having done this, they find it hard to specify the behaviour thus condemned.
However, both these States go on to do two things. Firstly, they label
certain organizations as Terrorist. Secondly, they draw up schedules of
proscribed offences such as possession of explosives or taking hostages.
Most of these offences are already offences under Ordinary Criminal Law. For
terrorism appears to be a state of mind rather than an activity. In the view
of the State, only the State has the right to use force. Thus the State has
a monopoly on the legitimate use of violence, except with minor exceptions
permitted by law such as the right to self-defence.
The term terrorism has had a chequered history. It has been said that the
very first dictionary definition was in 1798 by the Academie Francaise,
�systeme regime de la terreur�. In October 1793, the French Republic which
had in the previous year executed King Louis the XVIth declared terror �the
order of the day� to preserve the Revolution against its enemies, namely
Kings and Aristocrats. However, most of its victims were ordinary civilians
who refused to recognize the attempt by the State to reorganize the Roman
Catholic Church. Amidst this horror and confusion, there were born two
modern concepts of Human Rights. The committee of public safety and general
security pioneered the concepts of representative democracy and equality
before the law. The French Revolutionary leader Marat opposed the
traditional concept that a King was sovereign by divine right. He dropped
the term �divine right� and came up with a novel concept that the people
were sovereign and that the sovereignty of the people was an imprescriptible
right.
Since the French Revolution, groups of people have believed themselves
justified in opposing with violence a repressive regime in which no freedom
of political expression or organization was permitted. Thus arose the
puzzling statement that �one person�s terrorist is another�s freedom
fighter�. It is this relativism which has made it difficult to find an
acceptable definition of terrorism.
An attempt to deal with this question was made in the
1st Geneva Protocol of 1977 which dealt with this question and extends
the protection of the laws of war to those who �are fighting against
colonial domination and alien occupation and against racist regimes in the
exercise of their self-determination�.
Article 44(3) of the protocol grants the legal status of combatants and
of prisoner of war status in case of capture to fighters who are not members
of the armed forces of a State and normally do not carry their arms openly.
Inability to find a definition of terrorism which is totally acceptable does
not mean that one cannot make comments on it which help one to understand
terrorism. Clausewitz has defined war as the collision of two living forces.
Terrorism by contrast is sometimes a negation of combat. Its targets are
attacked in a way that inhibits self-defence. Indiscriminate bombings of a
Temple or the suicide killing of a civilian whether he be a leader or an
ordinary citizen are typical terrorist acts. Thus, we see in terrorism
except for those terrorists who are fighting racist regimes in the exercise
of their right of self determination a flouting of the international law of
war and a refusal to accept as binding the distinction between belligerents
and neutrals, combatants and non-combatants, legitimate and illegitimate
targets.
Although the 20th Century produced successful wars of national liberation
and in the case of South Africa against racism with a significant terrorist
dimension, none succeeded by terrorism alone. Thus, even when the African
National Congress had a violent struggle against Apartheid in South Africa,
in the end it was negotiation between Mandela and the South African
Government that resulted in the abolition of Apartheid and the election of
Mandela who had spent many years in jail as a terrorist as President.
According to Terror & Just Response by Professor Noam Chomsky of the
Massachusetts Institute of Technology�, page 70 the Pentagon has Mandela on
its list of Terrorists. Mandela was however awarded the Nobel Peace Prize
some years ago.
Professor Chomsky also refers to State terror. He states �State terror
elsewhere in Central America in those years also counts as international
terrorism, in the light of the decisive U.S. role and goals, sometimes
frankly articulated, for example, by the Army�s School of the Americas,
which trains Latin American military officers and takes pride in the fact
that �Liberation Theology ... was defeated with the assistance of the U.S.
Army.� (Terror & Just Response by Professor Noam Chomsky, page 72)
However, it is clear that where a national liberation movement has as its
opponent a regime which shares its values, then the best method is a
non-violent campaign. This is how Mahatma Gandhi and Nehru won independence
for India from the British. In the 30�s and 40�s, more and more Englishmen
began to sympathize with India�s struggle for independence. Ultimately, the
Labour Party itself which came to power soon after the Second World War, set
a deadline for independence and sent Lord Mountbatten as the last Viceroy of
India. It is significant that in the course of a non-violent procession led
by Mahatma Gandhi, when one man in the procession threw a stone at a
Policeman, Gandhi called off the entire procession. He was totally and
completely non-violent. This greatly impressed the minds of the liberal
British elite.
We must contrast this to the striking failures of those who have been the
purest adherents to terrorism like the urban guerrillas of the 1970�s and
the 1980�s such as the German Red Army. The result of these terrorist
campaigns have not been the overthrow of States but the reduction of the
quality of freedom.
However, one must not be unaware of those who believe in the liberating
value of violence for the oppressed. In the words of Frantz Fanon �it frees
the native from his inferiority complex, his despair and his inaction: it
makes him fearless and restores his self respect�.
Impact of Terrorism on Human Rights
The next problem is, what is the impact of terrorism on Human Rights? Six
months after the September 11th attack, the American Jurist, Professor
Ronald Dworkin warned that the biggest damage resulting from the counter
terrorist reaction had been to the long cherished American commitment to
individual freedom. Over reaction to terrorism will clearly have a most
pernicious long term effect on the quality of our life.
How does a Democratic Society which is committed to Human Rights react to
terrorism? There is a well known distinction between anti-terrorist measures
which consists of every lawful step a State might take from special
legislation to Martial Law but always keeping in mind the rights of the
subject. On the other hand, counter-terrorism is the adoption of terrorist
methods such as assassination, arbitrarily reprisals, the bombing of
civilian targets and abduction by the States� own Forces. What we must avoid
is counter-terrorism. That is the use of terrorism by the States� own
Forces.
The principle of proportionality for Democratic States
It is important that the principle of proportionality as prescribed by
St. Thomas Aquinas is adhered to in this situation. It stands up remarkably
well to a modern view of justice and expediency The reaction of a State
should be in proportion to the wound inflicted on it. Such action should not
add to the volume of violence and the outcome of any counter attack should
not lead to a greater injustice than that which was the casus belli.
To take the example of Sri Lanka, we must remember that the present ethnic
struggle which had become violent resulted from two main causes. Firstly, a
failure to investigate and to bring to book those who were responsible for
the killing of large numbers of the Tamil ethnic minority in the race riots
of 1958, 1977 and 1983. The State simply condoned those killings. This was
particularly so in 1983 when the State reacted to the mass killings and
sufferings of the Tamil ethnic minority by enacting the 6th Amendment to the
Constitution which made it illegal for anyone to ask for a separate State.
No one who held public office or even practiced as a lawyer had the right to
ask for a separate State. This was a severe curtailment of the freedom of
speech.
Shortly before there had been large scale massacres of youth in Jaffna
who were thought to be supporters of the TULF. Thus monsters like the late
unlamented Inspector Bastianpillai were allowed to run riot. Navaratnaraja
was one of the many men who died in Army custody with a large number of
injuries. A government which was a member of the United Nations and bound by
the Universal Declaration of Human Rights began to deny many of those rights
to a particular ethnic group. They forgot that the preamble to the Universal
Declaration of Human Rights, states �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.�
At the time the Sixth amendment was passed, the Tamil parties had decided
that the only solution to the ethnic problem was the establishment of a
separate State. The Race riot of 1983 resulted in the passing of the 6th
Amendment of the Constitution. This amendment prohibited any person from
supporting, espousing, promoting or advocating the establishment of a
separate State. The penalty for doing so was confiscation of all property
other than property to be determined by an order of Court as being necessary
for the sustenance of such person and his family. He was deprived of his
civic rights and if he was a member of Parliament, he would cease to be a
Member of Parliament. Thus the rights guaranteed by the UN Universal
Declaration of Human Rights in Article 19 of the Freedom of Opinion &
Expression was violated by the Constitution of Sri Lanka.
In addition, as pointed out earlier, Article 3 which provides that everyone
has a right to life, liberty and security of person was openly violated.
Thus the rationale for the rights set out in the Universal Declaration for
Human Rights, namely that these rights should be protected by the rule of
Law, �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� failed. The consequence which it foresaw,
namely, rebellion, began.
The second cause for the so called Terrorist Movement was the failure of the
Sri Lankan Government to honour agreements entered into between successive
Sri Lankan Governments and the Tamil people. The first of these was the
Bandaranaike-Chelvanayagam Pact which was unilaterally abrogated by the Sri
Lankan Government. The second was the Dudley Senanayake-Chelvanayagam Pact
which was abrogated by the Dudley Senanayake Government. The Dudley
Senanayake-Chelvanayagam Pact was abrogated because the Opposition which
included two Marxist Parties, the LSSP and the CP roused the masses with the
crudest and most diabolical racist slogans. One of these was the notorious,
�Dudleyge Bade Masala Vadai�. So when Mr. Dudley Senanayake failed to
implement the agreement, he wanted to resign from the Premiership and give
up Politics. However, the late Mr. Chelvanayagam prevailed upon him to
continue in Office in order that there would be some safeguard that the
Tamils would be fairly treated by the Government. Thus, the Tamils went
through the bitter experience of being betrayed by two successive Sri Lankan
Governments as well as having their rights guaranteed by the Universal
Declaration of Human Rights grossly violated. The older Tamil leaders were
patient. However, Tamil youth were not. Thus, we have today the LTTE.
The Solution
However, all is not lost. There have been similar problems in other
countries. In Palestine, the problem like ours was an ethnic problem. In
Ireland, it was more a problem of religion. In both countries, particularly
in Ireland, a successful Peace Process took place. One of the essential
ingredients was the facilitation of the process by an outside power. In the
case of Ireland, this included both a United States Senator and a Finnish
Leader. In Sri Lanka the Ceasefire Agreement of 2002 was an important
milestone towards establishing a humanitarian regime in our country. This
agreement was accompanied by a Peace Process which was facilitated by Norway
but today because of the listing of the LTTE by the European Union as a
Terrorist Organization, three of the 5 Nordic countries which are members of
the EU have been forced at the instance of the LTTE to withdraw from the
Monitoring Mission. This leaves behind only Norway and Iceland. Iceland is a
country with a miniscule army. This means that Norway which has to appoint
the SLMM Chairman; but has appointed someone from another Nordic country has
to also now preside over the Ceasefire Monitoring Mission. This is not
satisfactory because the SLMM headed by a Norwegian will have to make a
finding either that the government or the LTTE is guilty of a violation of
The CFA. This would embarrass it considerably in its role as a Peace
Facilitator.
The importance of confidence building
To ensure peace and prosperity for Sri Lanka, it is important that
confidence building between the government of Sri Lanka and the LTTE should
take place. At the very first meeting in Oslo between the LTTE and the
government of Sri Lanka, the LTTE said that they were willing to withdraw
its demand for a separate State and agree to a Federal State. This was a
major concession. The then Prime Minister, Mr. Ranil Wickremesinghe also
ensured that Tamils did not have second class justice under the Prevention
of Terrorism Act. This reprehensible Act made confessions to the Police
admissible. The Attorney General was requested to withdraw every single
indictment based entirely on confessions. He was also directed not to ask
for any postponements in trials under the PTA. Most check points in the
country where Tamils had been harassed for years and several Tamil girls
raped by the Army and Police were also withdrawn forthwith. The LTTE agreed
that traffic could use the A9 road to Jaffna. Not only did the humanitarian
situation improve remarkably but our growth rate increased from minus 1 to
6%. Foreign investment came to Sri Lanka. Tourism once more became a major
foreign exchange earner.
During this time came the Donor�s pre Conference which was held in
Washington in 2003. The LTTE were not able to attend, because it had been
proscribed in the USA. This was an unfortunate development. Then came the
Donor�s Conference in April 2003 in Tokyo which the LTTE refused to attend
because of the Washington problem. This indicates the importance of the
donors � particularly the four co-chairs, namely the UK, USA, Japan and EU
consulting the Norwegian facilitator who knows the sensitivities of the
parties before taking any decision or issuing a public statement. On 31st
October 2003, the LTTE submitted the draft Internal Self Government
Agreement. On 3rd November, 2003, President Kumaratunga took away 3
Ministries, namely Defence, Interior and Media from the Ranil Wickremesinghe
government. Without control of the Ministries of Defence & Interior, it was
not possible for the Ranil Wickremesinghe Government to honour the
undertakings given under the Ceasefire Agreement with regard to the armed
forces and Police.
On 2nd April, 2004, a Parliamentary Election was held and the Ranil
Wickremesinghe Government was defeated by a coalition put together by
President Kumaratunga which then took office. On 26th December, 2004 came
the Tsunami which caused immense suffering and damage in the Tamil areas.
Subsequently the P.Toms Agreement was negotiated but this was struck down by
the Supreme Court.
The Peace Process deteriorated and human security in the country also
deteriorated. In the last six months, we have lived through the worst period
since independence, when killings and abductions are taking place on a
massive scale not only in the Northern and Eastern Provinces, but also in
Colombo.
However, the picture is not altogether bleak. President Rajapakse has a
history of concern for Human Rights. He was of immense assistance to the
Mothers Front in the late 1980�s when a large number of young men
disappeared. Indeed he took the trouble to collect the documentation to
establish the correct situation in Geneva and was harassed in Sri Lanka at
the Airport. Recently he had a detailed discussion with Prime Minister Tony
Blair of England on how the Irish problem which was the cause of much
violence in England for decades was solved.
The Government�s intention to have a political settlement has been made
clear by the appointment of a committee of experts which includes persons
such as Dr. Jayampathy Wickremaratne who played an important role in the
drafting of the 2000 Draft Constitution which unfortunately was not
proceeded with. That Constitution to a large degree had the support of both
the major parties in Parliament. It also provided for devolution. The
President is also taking the initiative of inviting the major opposition
party for deliberations. Great patience should be shown by both sides and a
constructive workable arrangement arrived at.
The blame for the failure of the two agreements referred to earlier lies not
only with the Sinhala leadership but also the leaders of the Tamils who
perhaps should have given more attention to inform the Sinhala elite and
opinion leaders of their problems and the justification for the solutions
offered by them. Thus, these settlements lacked the critical mass which
could have been obtained if important groups within the Sinhala elite also
supported these settlements.
Again a major grievance of the Tamils, namely that Sinhala was the only
official language, was solved by the 13th amendment which brought in Article
18 (2) which made Tamil an official language. A pro-active Official
Languages Commission can make this a reality.
International dimensions of terrorism
Soon after the attack on the twin towers in New York on 11th September,
2001, President Bush declared �a war on terrorism�. A well known comedian
and former Monty Python Star, Terry Jones, publicly posed the question
whether it was possible to make war on an abstract noun. However, the United
Nation�s Security Council, on 28th September, 2001 passed Resolution 1373.
This Resolution was adopted pursuant to Chapter 7 of the UN Charter and is
thus binding on all member States. Reaffirming that all Acts of
international terrorism constituted a threat to international peace and
security, the Security Council called on States to work together urgently to
prevent and suppress terrorist acts including through increased co-operation
and full implementation of the relevant international conventions relating
to terrorism. This resolution decided in particular, that all states must
prevent and suppress the financing of terrorist acts; criminalize terrorist
acts and the willful collection of funds, in order to carryout terrorist
acts. As regards Refugees, the Resolution calls on States to refuse to grant
asylum to those who finance and, facilitate or commit acts of terrorism or
harbour the authors.
However, implementation of Resolution 1373 could result in bizarre and
perhaps amusing problems. A leading English Jurist has said that if Osama
Bin Laden happens to take refuge in England and the US Government asks for
his extradition to the US, the British government would be legally obliged
to refuse such extradition, if the offence with which Osama is charged
carries the Death Penalty.
Unfortunately, Resolution 1373 does not refer to UN Resolution 54/164 which
declares that all member States are bound in that �all measures to counter
terrorism must be in strict conformity with the relevant provisions of
international law including international human rights standards.�
In its observations to the United Kingdom, the Human Rights Committee of the
U.N. noted
�with concern that the State Party in seeking inter alia to give
effect to its obligations to combat terrorist activities, pursuant to
security council resolution 1373, is considering the adoption of
legislative measures which may have potentially far reaching effects and
affect rights guaranteed in the covenant. The State Party should ensure
that any measures it undertakes in this regard are in full compliance
with the provisions of the covenant including when applicable the
provisions on derogation contained in Article 4 of the covenant. (UN
Doc. CCPR/CO/73/UK,CCPR/CO/73/UKOT, 5 November 2001, paragraph 6).
Guantanamo
A fall out of President Bush�s �war on terror� was a camp containing a
large number of detainees mostly non-nationals of the US held in Guantanamo,
an American base near Cuba.
The legal position was stated by the US Supreme Court in Rasul et al.v Bush
(No. 03-334 & 03-343 28th June 2004). The Court decided that US Federal
Courts did have jurisdiction to determine the legality of the executives
potentially indefinite detentions of individuals held in Guantanamo. The
historical principles of habeas corpus were applied. Justice Kennedy in his
judgement stated as follows:-
�Perhaps, where detainees are taken from a zone of hostilities, detention
without proceedings or trial would be justified by military necessity for a
matter of weeks; but as the period stretches from months to years, the case
for continued detention to meet military exigencies becomes weaker.�
Lord Steyn, a judge of the House of Lords has said in �Guantanamo Bay: The
Legal Black Hole�, �At present we are not meant to know what is happening at
Guantanamo Bay. But history will not be neutered. What takes place there
today in the name of the United States will assuredly, in due course, be
judged at the bar of informed international opinion.�
Conclusion:
In conclusion let me quote from Helen Duffy�s �The War on Terror and the
Framework of International Law� - �It will be the extent of the
international community�s commitment, to clarify and strengthen
international law, not only by reiterating standards but by ensuring that
they are respected, that will define where the pendulum stops and where the
ultimate impact of the �war on terror� is on the international rule of law.�
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