R2P Vs R2PT (responsibility to protect from terrorism)

by Kalana SENARATNE

It may be very useful to inquire into the applicability of what the International Commission on Intervention and State Sovereignty (ICISS) calls the Right to Protect’ (R2P). It may be useful to think a bit. It may be useful to consider the case for what I call the R2PT - ‘Responsibility to Protect from Terrorism’. In this piece, I wish to argue that R2PT is far more applicable and urgent (not to mention acceptable) to the Sri Lankan context than R2P.

Bitter pills

First and foremost, some bitter pills need to be swallowed. So let’s take our medicine first. Or, let those who are sick do some swallowing.

A doubt arises in a matter which is doubtful. Many may not have noted, but a shadow is cast on the entire fabric of the R2P, when considering the bona fides of certain principal actors who were behind the preparation of the ICISS Report on the R2P. Let’s pick Lloyd Axworthy, for example.

Lloyd Axworthy, a former Minister of Foreign Affairs of Canada, was a staunch supporter of the NATO illegal bombing of Kosova. More than the protection of human rights, illegal military intervention bypassing the UN Charter had much to do with the spread of Western supremacy and dependency, the trans-Balkan AMBO pipeline (Albanian Macedonian Bulgarian Oil Corporation pipeline) and Camp Bondsteel, the largest foreign military base constructed since Vietnam. Kosova declared independence. The rest is history.

Interestingly, Lloyd Axworthy, who supported this flagrant violation of the most fundamental principles of international law, was also (by coincidence, perhaps?) the one who initiated the ICISS, and chaired its Advisory Board (!) Bitter, indeed.

Then come issue concerning terminology, when considered from a legal perspective. Fundamentally, the ‘R’ in the R2P raises certain fundamental problems in respect of what the American jurist Wesley Hohfeld calls ‘jural correlatives’.

Appreciating and understanding the jural correlatives is critical as they relate to the jural relationship between two entities or persons as well as logical consistency of legal terms. So while, for example, the jural correlative of ‘right’ is ‘duty’ and of ‘power’ is ‘liability’, the jural correlative of ‘responsibility’ is questionable.

For there to be ‘responsibility’ do we claim the existence of a ‘right’ to be protected? Or, a duty’ to be protected? Or what? We can indeed claim so, from the State to which we belong. But from others? From our neighbouring State(s)? Our allies or friends? A regional body? The United Nations (UN)? The Security Council? ‘Responsibility’, therefore, becomes a meaningless, as well as a doubtful and dangerous term.

Yet, for the sake of argument, let us proceed with the ‘R’ The elaboration of ‘sovereignty’ as ‘responsibility’ was the reason for the ICISS (Para 2.14-5 of the Report of the Commission, of December 2001), to adopt the term ‘responsibility’ (apart from the deliberate avoidance of ‘humanitarian intervention’, as the words did not help to carry forward the debate! - para 2.4).

Be that as it may, the rationale behind the R2P is an appreciable one. There are of course all manner of rogues who tout R2P like a mantra, without knowing what it means and/or what it entails both by way of process and consequence; but the protection of a population where grave human rights violations occur is necessary. Such dastardly acts should not be tolerated.

However, it should be understood that R2P is far from being, at least, a principal of customary international law. There is insufficient

State practice. There is insufficient evidence to suggest that States consider the protection of populations of other States as a legal responsibility.

Moreover, the important criterion that needs to be satisfied (apart from the strict legal conditions and limitations which are placed in the form of, for example, Security Council authorisation) is the threshold criterion. This is where the logic, of proponents of R2P as applicable to Sri Lanka, splits. The threshold that justifies the application of the R2P is quite high.

The threshold, I believe was set by Kofi Annan, in a question raised in his Millennium Report to the General Assembly: ... if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica - to gross and systematic violations of human rights that offend every precept of our common humanity? A valid question, deserving an answer in the affirmative, if the proper legal requirements are met.

But, is the Sri Lankan human rights situation akin to that which was seen in ‘Rwanda or Srebrenica’? Is there anything even remotely comparable to the massacre of 800,000 Tutsis, or even the Great Lake Refugee crisis when around 2 million Hutus fled that country? OR is there anything similar to what the Serbian forces did to Bosniaks? No. Let us be mindful of the nature of the threshold again, mindful of the consequences of the R2P to a particular State. The importance of clearing the threshold is then evident.

Human rights

If a case for R2P based of human rights violations is made because of what happened to Keith Noyahr or J. S. Tissanayagam or Father Jim Brown or the alleged abductions and disappearances of whom the culprits remain at large, a fortiori, a much stronger case exists for R2PT based on the brutal assassination of, for example, Jeyeraj Fernandopulle, D. M. Dassanayake, et al, and the innocent civilians killed by the recent bombings at Nugegoda, the Fort Railway Station, Dehiwala, Piliyandala, Katubeddha, Polgolla, etc. etc. etc. It is alleged that human rights violations of the former kind are discriminate and distinguishable.

But it is understood beyond question, that human rights violations of the latter kind (which come mostly in the form of death, an and complete negation of the ‘right to life’) are indiscriminate. By addressing the cause for the violation of the rights of the latter cannot we address the cause of the violations of the right of the former? Think I will explain.

A solution

There is uncertainty and ambiguity concerning the real culprits of human rights violations when terrorism has raised its ugly head to such a despicable level. Let’s be honest about it. The blame game is most intense whenever a random killing, abduction or disappearance of a person is reported. Everybody is blamed.

No one takes the blame. There is an eternal State of denial. The real culprits go free. Meet it or shirk it, that is how it is.

The danger in all this is that anyone, be it certain elements of the Government, the LTTE, or any other clandestine group, can exploit the situation to wilfully commit human rights violations. What is the fundamental cause though? Terrorism.

There are other problems too. Consider the enactment of those ‘draconian’ laws and regulations which run counter to fundamental human rights and justice. Take Britain for instance, which introduced control orders under their anti-terrorism legislation. Critics say they are a blunt and draconian tool.

The House of Lords Judicial Committee, in October 2007, held that orders confining suspects to their homes for 18 hours a day breached the right to liberty. What is the fundamental problem which Governments try to address through such enactments? Terrorism, again.

Do not forget, that the ‘terrorist veil’ behind which many take cover, is all too thick. It clouds many things and many people. Get rid of terrorism, and you will realise who the real culprits are. Keep tolerating or appeasing terrorism, and you will not know for sure who the real culprits are. Terrorism affects everybody’s human rights. Dead or alive, we are victims of LTTE terrorism, first and foremost.

As the Report of the UN Secretary General of 27 April 2006 titled ‘Uniting against Terrorism: recommendations for a global counter-terrorism strategy’ (A/60/825) reminds us, ‘victims of terrorist acts are denied their most fundamental human rights’(paragraph 6) The application of R2PT then would do away with the need to invoke the R2P. So, if by human rights the Jehan Ps or the Nimalka Fs mean the rights of a selected few, then I rest my case.

But I like to believe that what they mean when chest beating about human rights violations, are the human rights violations concerning all. ‘All’, meaning the rights of those abducted or displaced or attacked, as well as the rights of those blown to bits by a suicide bombing or a claymore. So let’s at least acknowledge the brutality of terrorism. Let’s realise that terrorism applies indiscriminately. Hence, R2PT rests on a firm moral and ethical foundation.

International obligation

So, why not a case for the protection of all of us from terrorism? Why forget the international campaign concerning the fight against terrorism? I am referring to terrorism pre-9/11 as well as post-9/11. I refer to terrorism perpetrated anywhere, in all its forms and manifestations. Have not States understood or realised the overwhelming obligation to protect lives by combating terrorism? Let us recap, briefly.

It was a far back as November 10 of 1934 that a resolution adopted by the Council of the League of Nations made particular reference to the duty of every State ‘neither to encourage or tolerate on its territory any terrorist activity, and to the fact that ‘every State must do all in its power to prevent and repress acts of this nature and for this purpose lend its assistance to Governments which request it.’ Consider the progress made since then.

There was the 1937 Geneva Convention for the Prevention and Punishment of Terrorism which echoed the above sentiments. Thereafter, with the establishment of the UN came a renewed effort to combat terrorism globally.

Thirteen International Conventions on terrorism have been adopted so far under the aegis of the UN. Consider the European Convention on the Suppression of Terrorism of 1977. Consider the SAARC Regional Convention on the Suppression of Terrorism adopted in 1987. Note the importance stressed on combating terrorism. These are legal obligations, mind you.

Consider the above quoted ‘Uniting against Terrorism’ Report, which reiterates that ‘terrorists must never be allowed to create a pretext for their actions. Whatever the causes they claim to be advancing, whatever grievances they claim to be responding to, terrorism cannot be justified’ (paragraph 9). Not the Report asserting that Member States of the UN, by becoming Parties to the UN Conventions on terrorism and implementing them, ‘emphasise that the international community does not tolerate terrorist activities and is prepared to fight them’ (para 12).

The Report also stresses the need to develop State capacity to prevent terrorism, and in this regard urges Member States, inter alia, to review the existing UN mandates related to assistance for building the capacity to prevent terrorist attacks on the general population’ (para 86).

What is interesting about the R2PT then is that it does not need to come in the form of ‘intervention’, or a physical presence within the territory of a State. It has much to do with technical assistance and greater capacity building to prevent terrorist attacks, or the provision of necessary artillery to combat and defeat terrorism.

Hence, a good part of the R2PT lies also in what the ICISS calls the responsibility to prevent as well as the responsibility to react. Also, the R2PT takes into account the development of legal principles that have helped fight terrorism effectively.

Terrorism has had a very positive impact on a number of principles which suggest very clearly that there is an obligation upon States to assist one another in countering terrorist activity.

As Dr. Rohan Perera, the current Chairman of the UN Ad Hoc Committee on Terrorism has explained (see generally International Terrorism, Vikas Publishers, 1997) principles such as the non use of territory of one State for terrorist activities against another State, the principle of universality of jurisdiction, the principle of ‘extradite or prosecute’ and the exception to the principle of non-extradition of political offenders in respect of terrorist offences, have been positively influenced by the brutal phenomenon of international terrorism. Hence R2PT also rests on a firm legal foundation.

The writer was formerly Assistant Director (legal) at the Secretariat for coordinating the peace process (SCOPS)