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Human Rights &
Humanitarian Law
Nadesan Satyendra
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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...
Nonethe 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. |
