Role of the UN and vested interests

By Dr. Telli RAJARATHNAM

It was in 1948 that the vast majority of States signed the Universal Declaration of Human Rights, committing themselves to respect over 30 separate rights for individuals.

As it was not a legally binding declaration and contained no enforcement provisions, the Declaration left States’ sovereignty intact, but it was a first step towards tethering them to international, universal obligations regarding their internal affairs.

Over decades, these human rights would come to enjoy ever stronger legal status. One of the most robust human rights conventions, one that indeed curtails sovereignty, even if mildly, through its arbitration mechanisms, is the European Convention for the Protection of Human Rights and Fundamental Freedoms, formed in 1950.

Roughly contemporaneous, signed on December 9, 1948, was the Genocide Convention, committing signing States to refrain from and punish genocide.

Then, in the mid-1960s, two covenants - the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights - legally bound most of the world’s States to respecting the human rights of their people.

Again, the signatories’ constitutional authority remained largely intact, since they would not allow any of these commitments to infringe upon their sovereignty. Subsequent human rights covenants, also signed by the vast majority of the world’s States, contained similar reservations.

The UN has condoned terrorism. Then what is this hue and cry about war crimes? We must not forget that there is heavy lobbying for and on behalf of terrorists by corporate interests.

One of the magnificent achievements of the UN has been the transformation that has taken place in global opinion on the relationship that should form between the governing and the governed, between the government and the citizen.

It was on the basis of the moral authority of the General Assembly’s Universal Declaration of Human Rights and the determined endeavours of the Commission on Human Rights, that this transformation was achieved.

The dignity of the individual has now, largely as a result of United Nations leadership in the field of human rights, been placed, as it should be, among the priorities of national and international attention.

The Universal Declaration on Human Rights is not limited in scope to ensuring the observance of human rights by Governments alone.

The Declaration has a far wider purpose: the observance of human rights by all governmental and non-governmental parties alike.

Article 3 of the Universal Declaration, which requires that everyone has the right to life; and the provisions of Article 30 of the Declaration prescribes that: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”.

An act of terrorism by a non-governmental entity against civilians is surely a violation of the human rights of its victims and, surely, a crime against humanity as well.

We know the horrific consequences of terrorism: the horror; the thousands of unsuspecting innocent lives lost or maimed, the thousands of families then left to grieve; the countless personal tragedies that terrorism leaves. The horrors of terrorism have devastated the country and have cast a heavy burden on successive governments and the nation including all of us and on humanity as a whole.

There are also the larger disruptions of national stability and order as well: of the economy and the customary ways of life.

We remember the bombing of the Central Bank, the adjacent buildings, the Temple of the Tooth Relic and other temples, the buses and trains in Sri Lanka where numerous people of all communities were killed, injured, the numerous innocent civilians who were killed and each of us would have a story to tell about the injuries sustained or the deaths of our loved ones.

All Tamil militants including the LTTE terrorised their own people. They never changed - they earned money and still are marketing the ultimate objectives of terrorism by slandering the Government. We will always be affected by the memories of the damage caused by the terrorists - this we shall carry with us for as long as we live.

The terrorism of September 11, 2001 in the USA gave rise to a ‘coming-together’ of the people, in the finest traditions of humanity.

On September 12, the Security Council and the General Assembly convened to express: their collective condolences; an unqualified condemnation of terrorism: a determination that those responsible should not go unpunished; and firm concurrence that terrorism threatened the foundations of human society and order and would need to be, and must be, globally removed.

We have sent a message of determination and hope to the entire world.

Think of all the millions of innocent people who died in this bloody century because democracies reacted too late to evil and aggression.

Because, the duty of the Defence Secretary was well-performed, the past is gone not with helpless indignation, but with a hopeful affirmation of human dignity and human rights for 2010.

In a world too divided by fear among people of different racial, ethnic and religious groups, he has given confidence to the friends of freedom and pause to those who would exploit human differences for inhuman purposes.

Military necessity

Over 30 years or more, we have not been able to solve this problem. We required a balance between the need to achieve a military victory and the needs of humanity. In this sense, necessity has been viewed as a limitation to unbridled barbarity.

The application of the doctrine of military necessity makes use of the principle of proportionality as a mechanism for determining the positioning of a fulcrum between these competing poles. Using proportionality thus gives effect to the recognition that the choice of methods and means of conducting war or armed conflict are not unlimited.

The means and methods of conducting war operate to achieve a particular military objective, which consequently assists in achieving a larger political objective.

While necessity might determine the legitimacy of the armed attack, proportionality determines the amount of force that might be used. In a sense, necessity operates at a macro level, while international humanitarian law operates at a micro level, though both might lie on the same continuum, given the difficulties in the transition.

This difficulty is most apparent when the principles of necessity and proportionality have been incorporated into conventional international law, particularly international humanitarian conventions.

The development of these conventions and the application of these principles require some consideration if one is to arrive at an understanding of their application in a modern armed conflict. The distinction in the Sri Lanka situation is that it is within our territory.

Military necessity has been described as ‘a basic principle of the law of war, so basic, indeed, that without it there could be no law of war at all’. The acceptance that, while the object of warfare is to achieve the submission of the enemy, which may require the disabling of as many enemy combatants as possible, this should only be achieved in a manner that does not cause any unnecessary suffering or damage.

This limitation to the means of waging war is not, however, necessarily humanitarian in nature, and much of the early restraints were based on economic, political, and military considerations.

However, the need for a balance between the considerations of humanity and the military actions necessary to win a war is regarded as defining the very nature of international humanitarian law, making military necessity a central principle in this balance.

The principle of distinction is fundamental to humanitarian law, but its precise content varies according to the kind of conflict. In national liberation struggles - and international armed conflicts - the distinction is between ‘civilians’ and ‘combatants.’ Combatants have no right to life under humanitarian law.

Every individual is classified as either a combatant or as a kind of protected person, such as a prisoner of war (a captured combatant) or a civilian. An individual’s rights change when his classification changes.

A civilian has the right not to be targeted for attack and the right to receive some protection from attack. If the civilian joins the armed militants, he exchanges the rights of a civilian for the rights of a combatant. A combatant has the right to take part in hostilities.

If the UN condemns terrorism, the UN should accept military necessity.

Sri Lanka still faces great challenges in this world, but we will meet them. We will, as a nation, successfully maintain the territorial integrity of Sri Lanka.

The current trends in international affairs relating to Sri Lanka with the war against terrorism and how the world looks at us owing to the accusations made against us by vested interests and whether we have overcome the difficulties and convinced the world that we were justified in doing what we had to do is yet to be seen.

The recurring problem of accusations is a result of the frustrated Tamil militants overseas trying to revive the LTTE for their own survival.

All countries should foster a new security concept featuring mutual trust, mutual benefit, equality and cooperation and fully respect the diversity of world civilisations, and should seek consensus through dialogue, co-operation through consultation and development through exchanges.

Solidarity is strength

History tells us that solidarity means strength, progress and success.

Peace, co-operation, development and progress are what the entire international community is hoping and striving for.

The developing nations must continue to work closely together in the spirit of solidarity and co-operation and raise their voice and strengthen their position in international affairs if they are to secure their fundamental interests.

The late Lakshman Kadirgamar is remembered to have said, “A criminal organisation - whether involved in rebellion against a State or not - must depend for its sustenance outside the law. For its massive operations and massive weaponry, massive collections of funds are continually required.

As funds available for criminal activities within a State, especially a developing State, are inevitably small, and the monitoring of their collection and disbursement relatively simple, fund collection for such activities is carried out abroad - through international criminal networks, of course - and also, as in all criminal enterprises, through knowing or unknowing front organisations or other entities that now proliferate in many forms, in many countries - often in the guise, sadly, of charitable groups or groups ostensibly concerned with human rights, ethnic, cultural or social matters.....

The many disparate forces for international terrorism do not come together in one monolithic whole. They are variously inter-connected in numerous ways and their international networks are extensive.

They are mutually supportive and communicate through the global underworld of crime when special missions are afoot. If international terrorism is to be ever removed from our midst, we must begin with the recognition that international terrorism is a form of global criminality.

We must not let ourselves be deceived by the artfully crafted cloaks of false pretensions. It is the method of terrorism as in the murder of innocent civilians and the defiance of the sanctity of life - that defines terrorism.

This is self-explanatory of the fact that accusations are being made by certain corporate interests having links with Tamil terrorists and Tamil militant political parties who wear a mask of democracy and undermine the very pillars of a sovereign state for their own survival.

We look for diplomacy. But there is no diplomacy with some of those opposed to us. We do not consider them opponents, but they oppose every conceivable move we make to develop the country. Sometimes, there is no compromise with such people, no meeting of minds - no point of understanding - so we would have a just choice - defeat it or be defeated by it.

This is where there was a necessity for military intervention. We learnt that however much we strive for peace, we need a strong defence capability where a peaceful approach fails. Whatever the dangers of the action we take, the dangers of inaction are far greater.

Throughout history war has been the source of serious moral questions.

Today, war is seen by some as undesirable and morally problematic. At the same time, many view war, or at least the preparation and readiness and willingness to engage in war, as necessary for the defence of their country and therefore a just war.

Support for war continues to this day, especially regarding the notion of a Just War (necessary wars required to halt an aggressor or otherwise dangerous nation or group).

International law recognises only two cases for a legitimate war: * Wars of defence: when one nation is attacked by an aggressor, it is considered legitimate for a nation along with its allies to defend itself against the aggressor.

* Wars sanctioned by the UN Security Council: when the United Nations, as a whole, acts as a body against a certain nation. Examples include various peacekeeping operations around the world, as well as the Korean and first Gulf Wars.

The subject of international law known as the law of war or international humanitarian law also recognises regulations for the conduct of war, including the Geneva Conventions.

Article 2, paragraph 7 of the UN Charter states: “Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter.” Sovereignty, though its meanings have varied across history, also has a core meaning, supreme authority within a territory. It is a modern notion of political authority. Historical variants can be understood along three dimensions - the holder of sovereignty, the absoluteness of sovereignty, and the internal and external dimensions of sovereignty. The State is the political institution in which sovereignty is embodied.

* The history of sovereignty can be understood through two broad movements, manifested in both practical institutions and political thought. The first is the development of a system of sovereign states, culminating at the Peace of Westphalia in 1648. Contemporaneously, sovereignty became prominent in political thought through the writings of Machiavelli, Luther, Bodin, and Hobbes.

The second movement is the circumscription of the sovereign state, which began in practice after World War II and has since continued through European integration and the growth and strengthening of laws and practices to protect human rights. The most prominent corresponding political thought occurs in the writings of critics of sovereignty like Bertrand de Jouvenel and Jacques Maritain.

A definition of sovereignty

Supreme authority within a territory - this is the general definition of sovereignty. Historical manifestations of sovereignty are almost always specific instances of this general definition.

It is in fact the instances of which philosophers and the politically motivated have spoken most often, making their claim for the sovereignty of this person or that body of law. Understanding sovereignty, then, involves understanding claims to it, or at least some of the most important of these claims.

Sovereignty can also be absolute or non-absolute. How is it possible that sovereignty might be non-absolute if it is also supreme? After all, scholars like Alan James argue that sovereignty can only be either present or absent, and cannot exist partially. But here, absoluteness refers not to the extent or character of sovereignty, which must always be supreme, but rather to the scope of matters over which a holder of authority is sovereign.

Bodin and Hobbes envisioned sovereignty as absolute, extending to all matters within the territory, unconditionally. It is possible for an authority to be sovereign over some matters within a territory, but not all.

Today, many European Union (EU) Member States exhibit non-absoluteness.

They are sovereign in governing defence, but not in governing their currencies, trade policies, and many social welfare policies, which they administer in co-operation with EU authorities as set forth in EU law.

Absolute sovereignty is quintessential modern sovereignty. But in recent decades, it has begun to be circumscribed by institutions such as the EU, the UN’s practices of sanctioning intervention, and the International Criminal Court.

A final pair of adjectives that define sovereignty is ‘internal’ and ‘external’. In this case, the words do not describe exclusive sorts of sovereignty, but different aspects of sovereignty that are co-existent and omnipresent. Sovereign authority is exercised within borders, but also, by definition, with respect to outsiders, who may not interfere with the sovereign’s governance.

Only a practice of human rights backed up by military enforcement or robust judicial procedures would circumscribe sovereignty in a serious way. Progress in this direction began to occur after the Cold War through a historic revision of the Peace of Westphalia, one that curtails a norm strongly advanced by its treaties-non-intervention.

In a series of several episodes beginning in 1990, the United Nations or another international organisation has endorsed a political action, usually involving military force, that the broad consensus of states would have previously regarded as illegitimate interference in internal affairs.

The episodes have involved the approval of military operations to remedy an injustice within the boundaries of a State or the outside administration of domestic matters like police operations. Unlike peacekeeping operations during the Cold War, the operations have usually lacked the consent of the government of the target State. They have occurred in Iraq, the former Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti, Cambodia, Liberia, and elsewhere.

Although the legitimacy and wisdom of individual interventions is often contested among states.

The US bombing of Iraq in December 1999 and NATO’s intervention in Kosovo, for instance, failed to elicit UN Security Council endorsement, as did the US invasion of Iraq in 2003.

The broad practice of intervention is likely to continue to enjoy broad endorsement within the UN Security Council and other international organisations.

An explicit call to revise the concept of sovereignty so as to allow for internationally sanctioned intervention arose with The Responsibility to Protect, a document written and produced in 2001 by the International Commission on Intervention and State Sovereignty, a commission that the Government of Canada convened at the behest of UN Secretary General Kofi Annan.

The document proposes a strong revision of the classical conception by which sovereignty involves a ‘Responsibility to Protect’ on the part of a State towards its own citizens, a responsibility that outsiders may assume when a State perpetrates massive injustice or cannot protect its own citizens.

Responsibility to Protect has garnered wide international attention and serves as a manifesto for a concept of sovereignty that is non-absolute and conditional upon outside obligations.

This is the moment we need more English media coverage to defend our military strategy as a matter of human necessity to save the Nation from the grip of terrorism. There should be more discussions, analysis and submissions so that Ki-moon realises his mistake by appointing a panel quite contrary to the norms required for a Member State of the United Nations.

Sri Lanka today suffers due to two reasons- Firstly some unsuitable people have been appointed to represent the country overseas as diplomats.

They need to work harder and be patriotic than take care of their personal interests. Secondly, there are some Tamils in Parliament who pay lip service to patriotism and support the ideologies of a separate state with their militant experience and track records.

Let us work together as citizens of this beautiful isle. Let me quote Jesus Christ who said “He that is without sin amongst you, let him cast the first stone”.