Human Rights & Humanitarian Law Nadesan Satyendra | 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 | “...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') |
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 , , 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. | 
