Human Rights, Sri Lanka and the international community

by Prof. G. L. Peiris

The human rights discourse is one of the most striking features of the political landscape in Sri Lanka today. Voices have been raised stridently, threatening the government of Sri Lanka with dire consequences arising from intervention by the international community, having recourse to methods which could possibly extend to military action. Indeed, it was suggested by one commentator, in an article published recently in a Sunday newspaper, that the United Nations should send troops into Sri Lanka for the purpose of ensuring the protection of human rights.

There never was a more compelling need than there is today to penetrate the fog of emotive and deceptive language which characterizes the continuing debate, to lay bare, in conceptual terms, the hollowness of the arguments used in support of naked intervention and, most importantly, to achieve the required threshold of public awareness of the potential effects of allowing these spurious arguments to prevail.

The advocates of intervention needed an apostle to put forward a convincing theoretical case to buttress their stand. The most elaborate effort made in Sri Lanka to accomplish this purpose was that of Dr. Gareth Evans, former Foreign Minister of Australia and now President of the International Crisis Group, in his exposition "The Limits of State Sovereignty: The Responsibility to Protect in the 21st Century", in the eighth Neelan Tiruchelvem Memorial Lecture delivered at the BMICH in Colombo on 29th July this year. A critical assessment of the content of this lecture is useful to understand the nature of the issues involved and their importance for the national interest of Sri Lanka at this time.

At the centre of the debate is the role of the international community. Evans begins with the self-evident premise that each individual State has the responsibility to protect its own citizens. He proceeds, quite innocuously, to argue that the international community should, as appropriate, encourage and assist States to exercise that responsibility. He contends, again justifiably, that the role of the international community encompasses several elements - reacting effectively to situations, preventing situations fraught with danger, and rebuilding societies which have undergone trauma or catastrophe.

Up to this point, there is no grave cause for concern. Evans declares that international organizations including the United Nations must acknowledge the responsibility "to warn, to generate effective preventive strategies and when necessary, to mobilize effective reaction". He is comfortable with the proposition that "There will be situations when prevention fails and reaction becomes necessary". "Reaction", as he understands it, is defined in the next sentence: "Reaction does not have to mean military reaction; it can involve political and diplomatic, economic and legal, pressure, all measures which can themselves reach across the spectrum from persuasive to intrusive, and from less to more coercive". Then comes the thin end of the wedge: Evans proclaims, in stark terms, that while military action is certainly not the first resort, it is by no means unacceptable in suitable circumstances. While denying emphatically that the purported doctrine is "only about military intervention", he has no hesitation in committing himself explicitly to the position that "Coercive military action is not excluded as a last resort".

The far-reaching implications of this doctrine are immediately apparent. The conceptual lever, by means of which the doctrine is sought to be made palatable, is an insidious transition from the notion of "right" to that of "responsibility". There is a similar shift that is foreshadowed from "control" to "responsibility". But these are mere tactics that rely on deft semantic manoeuvre. The appeal to ideas linked to protection involves a thinly veiled euphemism; and the inductive reasoning resorted to is specious.

This approach must not be allowed to deflect attention from the substance which underpins the veneer. Once the facade is penetrated, the unvarnished interventionist doctrine is seen in sharp relief. In the words of Evans himself, "The starting point is that any State has the primary responsibility to protect the individuals within it. But that is not the finishing point: where the State fails in that responsibility, through either incapacity or ill-will, a secondary responsibility to protect falls on the wider international community". The contours of this doctrine, its proponents concede unabashedly, extend to the application of force against sovereign States.

Doctrine

Notwithstanding the facile use of terminology involving "humanitarian intervention" which is, professedly, "overwhelmingly protective" in character, the practical effect of the doctrine, it is obvious at a glance, entails the gravest jeopardy to States which are identified as targets.

The realization is long overdue in our midst that this doctrine, far from being a remote or theoretical abstraction, inflicts on the sovereignty and the territorial integrity of Sri Lanka a distressingly high degree of vulnerability.

This is not a matter of inference or extrapolation. It receives direct, and uninhibited, expression by Evans himself: "Should the war move into the LTTE-controlled areas in the north, it is likely to be much more fierce than the recent fighting in the east, and the impact on civilians is almost certain to be devastating. As the war grows more vicious, it could well spill over into areas outside the north - perhaps through deliberate attacks on civilians designed to provoke excessive, and politically damaging, replies from the other side. Such attacks and the communal tensions they are sure to increase, could well lead to the further erosion of the remaining elements of the rule of law. All this makes it hard to argue that Sri Lanka is anything but an 'R2P' (right to protect) situation".

It is clear, then, that on the basis of speculative anticipation Evans contrives to present a case for prospective intervention, by military means if necessary, in our country. There can hardly be a more urgent reason to evaluate, in an objective and dispassionate spirit, the foundations of this theory with a view to alerting the public of Sri Lanka about the perils attendant on cavalier acquiescence in this doctrine.

There are many dangers inherent in it. The gravest among these, without question, is the incurably vague and open-ended character of the suggested principle of intervention. Evans contends that the basis of the doctrine he expounds is "practical and principled". Demonstrably, however, the opposite is the case.

Evans concedes what is obvious: that the professed doctrine cannot be "about the protection of everyone from everything", and that "R2P" situations have to be narrowly defined". He goes on to state: "What needs to be understood is that not just one criterion but multiple criteria must be satisfied if coercive, non-consensual military force is to be deployed within another country's sovereign territory: it is not just a matter of saying that if a threshold of seriousness is crossed, then it's time for the invasion to start".

As far as the persuasive quality of the argument is concerned, this is the Achilles' heel. Evans proceeds to attempt a definition, in strikingly general terms, of the factors which would cumulatively represent a legal and moral justification of compulsory intervention. Apart from the perceived seriousness of the threat, he enumerates, as relevant criteria, "the motivation or primary purpose of the proposed military action; last resort, viz. whether there were reasonably available peaceful alternatives; the proportionality of the response; and, not least, the balance of consequences".

Ambit

The question, at bottom, is whether the proposed criteria, applied separately or in combination, offer a sufficiently firm, stable and predictable basis for distinguishing between those situations which warrant mandatory intervention against the will of the State concerned, and circumstances in which such intervention should rightly be denounced as gratuitous and unacceptable interference.

An overriding consideration in this regard is that, since the proposed action is to be taken outside the ambit of the Security of the United Nations and without invocation of its authority, the aggressors are themselves the arbiters of the reasonableness of intervention. It is this combination of incompatible roles that is fundamentally repugnant. The plea by Evans that the beneficiaries of the doctrine are "not prospective interveners but those needing support" carries no conviction. It is scarcely consistent with empirical experience that altruism and lofty objectives are imputable to prospective interveners. It is all too probable that the reasoning which seeks to fortify the doctrine will, for all intents and purposes, be of avail only as a pretext for self-serving action intended to protect not oppressed populations but vested interests.

The established international order already contains provision for a mechanism founded on participatory and equitable values. Consequently, there is no conceivable lacuna in this regard. The mechanism brought into being by the Charter of the United Nations consists of the authority and functions of the Security Council. Evans entertains reservations regarding the effectiveness of this mechanism on the ground that the power of veto, at the disposal of the permanent members of the Security Council, may stultify urgent action when it is required. According to him, this consideration raises "anxious questions about the integrity of the whole international security system".

The issue here is whether the transfer of these all-encompassing powers to a group of self-appointed custodians of the public interest in international affairs represents any change for the better. It calls for no great acuity of judgement to realize that any resolve to abandon a representative system mandated by the Charter of the United Nations, without identifying a viable substitute which has the potential to command general acceptance, is an exceedingly hazardous course of action.

Intervention

Moreover, Evans is mistaken when he contends that the innovation be recommends "has the pedigree to be described as a broadly accepted international norm, and one with the potential to evolve further into a rule of customary international law". He claims that the United Nations 60th Anniversary World Summit in September 2005 and the Summit Outcome Document signify endorsement of the core of the doctrine. This is not so. The summit Document extends support to some elements of the doctrine, but only within the framework of the Charter, and subject to the overarching role of the Security Council as the repository of decision making power in respect of enforced intervention. Similarly, the appeal by Evans to Resolution 1706 of 31st August 2006 on Darfur as a source of support for his argument is unconvincing.

The very fact that a specific Resolution was considered necessary to legitimize intervention in a particular case, amounts to evidence of the absence, rather than the existence, of a general principle warranting intervention. Exceptio probat regulam. The exception proves the rule.

All this has a direct bearing on the vital interests of Sri Lanka. Evans, turning his attention specifically to Sri Lanka, begins with an emphatic disclaimer of familiarity with the complex conditions of our national situation: "We in Crisis Group have only been here on the ground for a year, and we are still feeling our way".

In light of this caveat, one would naturally expect to find some degree of reluctance or constraint in prescribing solutions. But this spirit of circumspection is singularly lacking.

It is hard to argue, Evans maintains, that Sri Lanka is a typical "R2P" situation. However, he contends, with remarkable self-assurance: "It may not be one where large-scale atrocity crimes - Cambodia-style, Rwanda-style, Srebrenica-style, Kosovo-style - are occurring right now, or immediately about to occur, but it is certainly a situation which is capable of deteriorating to that extent. So it is an 'R2P' situation".

The extreme danger of this line of argument can be demonstrated irrefutably. Evans states: "While more than 4,500 have been killed over the last 20 months, and both government and LTTE forces have repeatedly violated international humanitarian law, the recent violence has not crossed the boundary into mass atrocity or obvious genocide, war crimes, ethnic cleansing or crimes against humanity. The violence has been contained just this side of full-scale disaster and internationally-recognized catastrophe".

Sovereignty

It follows from this reasoning that the crucial issue on which would depend the reasonableness or otherwise of armed intervention against the will of a sovereign State, with all the consequences flowing from that consideration, is the answer to the question: Has this tenuous boundary been crossed or, in the words of Evans himself, are we "just this side" of an internationally cognizable calamity? We may well ask: Who will decide this question which has inestimable implications for the future of our country? By what yardstick will they be guided? What is the source of their legal or moral authority to make so momentous a decision on Sri Lanka's behalf? In the absence of plausible answers to these questions, the overwhelming majority of Sri Lankans may well be forgiven for feeling, and confessing to, acute discomfort in respect of the basis of the purported doctrine.

Evans seeks to support his theory by arguing that "national sovereignty has to be weighed and balanced in these cases against individual sovereignty". This is a wholly impractical view. The core of classical political theory with regard to the Social Compact, developed in the writings of Locke, Hobbes and Rousseau, is that individuals surrendered their sovereignty to the nation State to lead orderly lives in a tranquil environment.

In the pre-existing state of nature, Thomas Hobbes declared in his celebrated work, 'The Leviathan', human life was "nasty, brutish and short". Few of us would be enamoured of the prospect of reverting to this state of things.

The essential question, at the conclusion of this analysis, is the proper perspective which should inform the relationship between Sri Lanka and the international community. Any worthwhile relationship, whether among individuals or nations, must be founded on the bedrock of mutual esteem, dignity and sincerity. This is, necessarily, a matter of reciprocity. Nothing is as destructive of the spirit of a wholesome relationship as any element of duress, coercion or intimidation, direct or oblique, because it erodes the pivotal attribute of self-worth.

This consideration is accentuated by special factors governing the current situation in Sri Lanka. One of the most regrettable aspects of the human rights discourse in the Sri Lankan context is its unbridled exploitation of human rights issues in pursuit of partisan political agendas. Foreign governments are exhorted today to withhold development assistancfe from Sri Lanka in the name of human rights; multilateral financial institutions are dissuaded, by a variety of methods, from entering into transactions with the government of Sri Lanka; the country is threatened with the discontinuation of trade benefits which have been earned on the basis of meritorious performance. These are developments without parallel in the contemporary history of Sri Lanka. Against such a unique backdrop, it is surely necessary for the international community to exercise the greatest vigilance to ensure that human rights do not become a tool in a relentless political campaign waged against a democratic government grappling with terrorism and attempting to serve its people in challenging circumstances.