The humanitarian intervention that saved the nation:

The doctrine of military necessity during internal armed conflicts

By Dr. T.C. Rajaratnam

Humanitarian intervention is a State's use of “military force against another State when the chief publicly declared aim of that military action is ending human rights violations being perpetrated by the State against which it is directed”.

There is no one standard or legal definition of humanitarian intervention; the field of analysis (such as law, ethics or politics) often influences the definition that is chosen. Differences in definition include variations in whether humanitarian interventions are limited to instances where there is internal conflict; whether humanitarian intervention is limited to punishment actions; and whether humanitarian intervention is limited to cases where there has been explicit UN Security Council authorisation for action.

There is, however, a general consensus on some of its essential characteristics:

* Humanitarian intervention involves the threat and use of military forces as a central feature.

* It is an intervention in the sense that it entails rescuing its own nation within the State by sending military forces into the territory or airspace within the sovereign state that is under threat of human rights violations and terror by non-governmental forces such as terrorists.

* The intervention is in response to situations that do not necessarily pose direct threats to States’ strategic interests, but instead is motivated by humanitarian objectives.

UN authorised interventions

To its proponents, it marks imperative action in the face of human rights abuses, over the rights of State sovereignty, while to its detractors, it is often viewed as a pretext for military intervention often devoid of legal sanction, selectively deployed and achieving only ambiguous ends.

Most States clearly would prefer to secure UN authorisation before using force for humanitarian purposes if it is between two countries and would probably agree that the UN Security Council, acting under Chapter VII of the UN Charter, can authorise military action in response to severe atrocities and other humanitarian emergencies that it concludes constitute a threat to peace and security.

The understanding of what constitutes threats to international peace has been radically broadened since the 1990s to include such issues as mass displacement, and the UN Security Council has authorised the use of force in situations that many States would have previously viewed as “internal” conflicts.

In several instances, States or groups of States have intervened with force, and without advance authorisation from the UN Security Council, at least in part in response to alleged extreme violations of basic human rights.

Four distinct attitudes or approaches to the legitimacy of humanitarian intervention in the absence of Security Council authorisations can be identified:

1. Status quo: Categorically affirms that military intervention in response to atrocities is lawful only if authorised by the UN Security Council or if it qualifies as an exercise in the right of self-defence.

2. Excusable breach: Humanitarian intervention without a UN mandate is technically illegal under the rules of the UN Charter, but may be morally and politically justified in certain exceptional cases. Benefits of this approach include that it contemplates no new legal rules governing the use of force, but rather opens an “emergency exit” when there is tension between the rules governing the use of force and the protection of fundamental human rights.

3. Customary law: This approach involves reviewing the evolution of customary law for a legal justification of non-authorised humanitarian intervention in rare cases. This approach asks whether an emerging norm of customary law can be identified under which humanitarian intervention can be understood, not only as ethically and politically justified, but also as legal under the normative framework governing the use of force.

4. Codification: The fourth approach calls for the codification of a clear legal doctrine or “right” of intervention, arguing that such a doctrine could be established through some formal or codified means such as a UN Charter Amendment or UN General Assembly declaration.

Responsibility to Protect

Although usually considered to be categorically distinct from most definitions of humanitarian intervention, the emergence of a ‘Responsibility to Protect’ (R2P) deserves mention. Responsibility to Protect is the name of a report produced in 2001 by the International Commission on Intervention and State Sovereignty(ICISS) which was established by the Canadian government in response to the history of unsatisfactory humanitarian interventions.

The report sought to establish a set of clear guidelines for determining when intervention is appropriate, what the appropriate channels for approving an intervention are and how the intervention itself should be carried out.

Responsibility to Protect seeks to establish a clearer code of conduct for humanitarian interventions and advocates a greater reliance on non-military measures. The report also criticises and attempts to change the discourse and terminology surrounding the issue of humanitarian intervention. It argues that the notion of a ‘right to intervene’ is problematic and should be replaced with the ‘responsibility to protect'. Under the Responsibility to Protect doctrine, rather than having a right to intervene in the conduct and to protect its own citizens against any form of terrorism.

This responsibility is said to involve three stages: To prevent, to react and to rebuild.

Sri Lanka's Humanitarian Operation was won because of President Mahinda Rajapaksa's leadership and Dr. Gotabaya Rajapaksa's directives and strategies.

President Rajapaksa with his legal acumen and skills of political analysis cleared with one sweep the allegations against Sri Lanka by carefully and analytically making a submission about the intricacies of human rights and the complexities of terrorism.

Patriotism

Whatever system of governance is eventually adopted, it is important that it carries the people with it. We need to convey the message that safeguarding our common property, humankind, will require developing in each of us a new loyalty: A loyalty to mankind, a loyalty to the country and a loyalty to the President - the leader of the country.

The entire country needs protection. We have to extend our loyalty to the whole of the human race.

We must appeal, as human beings, to human beings: Remember your humanity and forget the rest. If you can do so, the way lies open for a new paradise; if you cannot, there lies before you the risk of destruction.

The quest for a war-free country has a basic purpose - survival. But if in the process we learn how to achieve it by love rather than by fear, by kindness rather than by compulsion; if in the process we learn to combine the essential with the enjoyable, the expedient with the benevolent, the practical with the beautiful, this will be an extra incentive to embark on this great task.

Indifference is not a beginning, it is an end. And, therefore, indifference is always the friend of the enemy, for it benefits the aggressor, never his victim, whose pain is magnified when he or she feels forgotten. The political prisoner in his cell, the hungry children, the homeless refugees not to respond to their plight, not to relieve their solitude by offering them a spark of hope is to exile them from human memory. And in denying their humanity, we betray our own.

Does it mean that we have learnt from the past? Does it mean that society has changed? Has the human being become less indifferent and more human? Have we really learnt from our experiences? Are we less insensitive to the plight of victims of ethnic cleansing and other forms of injustices in places near and far?

Freedom

The moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of Sri Lanka and her people and to the still larger cause of humanity.

We have hard work ahead. There is no resting for any one of us till we redeem our pledge in full, till we make all the people of Sri Lanka what destiny intended them to be. We are citizens of a great country on the verge of bold advance, and we have to live up to that high standard.

All of us, to whatever religion we may belong, are equally the children of Sri Lanka with equal rights, privileges and obligations. We cannot encourage communalism or narrow-mindedness, for no nation can be great whose people are narrow in thought or in action.

Ceylon obtained independence from the British Rule in 1948 by smooth transition after India gained its independence. We honour our patriots who contributed towards that endeavour. But independence gained by defeating terror by the humanitarian operation by the Rajapaksa regime in the midst of so much interference from developed countries with vested interests is a far greater achievement in the history of this country. This is an event to celebrate.

Patriotism is the grund norm of civilised society. As citizens, we owe allegiance to the Constitution of Sri Lanka and we owe our loyalty and allegiance to the President. The total eradication of terrorism is possible only if arms are seized from all militant groups who pay lip service to democracy.

Civil allegiance is the duty of loyalty and obedience which a person owes to the State of which he is a citizen. The word ‘allegiance’ is a derivative of liege, free and historically it signifies the service which a free man owed to his liege lord. Every citizen owes the duty of loyalty to the State where he is a citizen.

Allegiance is the tie which binds the subject to the sovereign in return for that protection which the sovereign affords the subject. It was the mutual bond and obligation between the King or Queen and his or her subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him.

Allegiance is owed both to the sovereign as a natural person and to the sovereign in his or her political capacity. Loyalty requires affection also to the office of the sovereign, attachment to royalty, attachment to the law and to the constitution of the realm and he who would by force or fraud endeavour to prostrate that law and constitution, though he may retain his affection for its head, can boast but an imperfect and spurious species of loyalty.

As nature and religion teach moral obligations and prescribe to children dutiful conduct towards the parents, so nature and religion impose on citizens certain obligations towards their country and its rulers. These obligations may be interpreted as patriotism and obedience. Patriotism requires that the citizen would have a reasonable esteem and love for his country. He should have a reasonable esteem and love for his country.

Our nation has been torn apart by the evils of terrorism and natural disaster. We have all suffered - there is no answer - there is no justification for the pain. Freedom of choice alone does not guarantee justice. Equal rights are not defined only by political values. Social justice is a triad of freedom, an equation of liberty. Justice is political liberty. Justice is economic independence. Justice is social equality.

Due to our internal conflicts which we could have long resolved, external forces with vested interests have all sought to intervene, some in the pretext of resolving the conflict, but our experience has proved that the gap of resolution of conflict does not seem to be narrower now.

Diplomacy

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. 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. We must always be on guard for those who will exploit and manipulate for their own narrow political ends who will distort the essence of pluralism and tolerance for their own extremist agendas.

We must work as a community to ensure that everyone, not just a privileged few, get the collective ability to further the individual's interests. The governing idea of modern social democracy is community founded on the principles of social justice. That people should rise according to merit not birth; that the test of any decent society is not the contentment of the wealthy and strong, but the commitment to the poor and weak.

But values aren't enough. The mantle of leadership comes at a price; the courage to learn and change; to show how values that stand for all ages can be applied in a way relevant to each age.

By the strength of our common endeavour, we achieve more together than we can, alone. We must reach beyond our fears and our divisions to a new time of great and common purpose. Let us trace the roots of affirmative action.

Let us determine what it is and what it isn't. Let us see where it has worked and where it hasn't and ask ourselves what we need to do now.

Private media freedom is running amok. The news that millions of people in this country including foreign correspondents who convey news overseas receive each night is determined by a handful of men responsible only for their corporate employers. The State should have control not to permit abuse of the freedom of the press.

We must not permit a contaminated moral environment. Let us not negotiate out of fear, but let us never fear to negotiate.

Homeland of all Sri Lankans

The North is the homeland of all Sri Lankans, much like the East, West and the South. It does not belong only to the Tamils. It belongs to all Sri Lankans. How come Tamils can live in Colombo 7, Wellawatte, Dehiwela, Bambalapitiya, Kandy, Matale, Hatton and Nuwara Eliya?

Tamils are engaged in business activities from 1st Cross Street to 5th Cross Street, Kotahena and Sea Street; would it not be worse by devolving power to the North solely to the Tamils?

It is the Sinhalese who have been overlooked, has the Sinhala common man enjoyed equality, he has been overlooked during our talks about peace. For 30 or more years and now, people are talking of the rights of Tamils, then who speaks of the rights gradually taken away from the Sinhala common man? Why has he got to suffer?

Take the universities: To common knowledge there are several universities. However, do Sinhala students enter the Jaffna and Batticaloa Universities? But Tamil students are eligible to enter all universities.

Doctrine of necessity

The duly elected Executive President of the Democratic Socialist Republic of Sri Lanka, Mahinda Rajapaksa, as the Commander-in-Chief of the Armed Forces, has taken the correct decision as he is morally and legally bound to protect his subjects from all forms of terror.

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.

Throughout history, mankind’s most basic human nature has restricted the manner in which wars are fought. The earliest writings of ancient civilisations evince attempts to limit the ways of war and to codify the resulting rules.

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.

Fundamental Humanitarian Law

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 forces, he exchanges the rights of a civilian for the rights of a combatant. A combatant has the right to take part in hostilities.

Military intervention was a necessity in the interests of the nation. It was a necessity to maintain a state of emergency like in the US. Since 9/11, the US has been in a state of emergency passed from the Bush administration to the Obama administration.

We remember the bombing of the Central Bank, the adjacent buildings, the Temple of the Sacred Tooth Relic and other temples in Sri Lanka where numerous people of all communities were killed, injured and blinded, 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.

President Premadasa, Indian Prime Minister Rajiv Gandhi, Presidential Candidate Gamini Dissanayake, Cabinet Minister Jeyaraj Fernandopulle, Dr. Neelan Tiruchelvam and Foreign Minister Lakshman Kadirgamar are some of the victims cited. However, during the 30 years of terrorism, not one Tamil terrorist leader was killed by the terrorists. This reveals that there was conspiracy between all Eelam militant groups who conveniently registered their organisations in the same name of their militant groups as political parties, but recent history and present observation reveals to us they never changed their attitudes.The terrorism of September 11, in the USA gave rise to a ‘coming-together’ of the people of the great city of New York in the finest traditions of humanity. We expect the same in displaced areas for international support to revive and resuscitate the morale of the people affected by the war against terrorism. Let us get together and support them. The Government is doing everything possible to help them.

Let us hope that such a deep sense of the ‘togetherness’ of all of humanity at times of great crises will continue to be pervasive. Terrorism is, sadly, no stranger to Sri Lanka. We, in Sri Lanka know terrorism, unfortunately, only too well. We have shown that we could eradicate it, but the process is not over.

The doctrine of military necessity and the doctrine of the state of emergency are often used in a sense which requires a balance between the need to achieve a military victory and the requirements of humanity. In this sense, necessity has been viewed as a limitation to unbridled barbarity.

The application of the doctrines 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 doctrine of military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. The doctrine of the state of emergency helps to resuscitate the nation and survive the disasters.

The writer, Dr.Telli C. Rajaratnam LL.B(SL), LL.M(Lond)., Ph.D(Lond) has practised in the United Kingdom as a Solicitor of England and Wales, in Australia as a Barrister and Solicitor, in the US and Sri Lanka as an Attorney-at-Law. He has authored several publications and has been teaching Law and International Relations in several universities overseas and in Colombo.

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