International Human Rights: -Dispelling the MythsOctober 11, 2014, 2:33 pm
Continued from last week.....
Kofi Annan took up the report and introduced some elements into the Heads of State summit held in 2005. It had been cut down to include humanitarian intervention only in the case of war crimes, crimes against humanity and genocide- not natural disasters- and only allowed the use of military force through endorsement by the Security Council under Chapter 7 where Russia and China would also be present with their vetoes. This placated the heads of state gathered there at that time and they all signed the Summit document including Sri Lanka.
The final paper presented by the Secretary General made it clear that R2P had three pillars- the first pillar recognized that the primary responsibility for protection of citizens lay with the nation state and that a fundamental duty of sovereignty was to protect your citizens.
The second pillar was diplomacy. If it looks like a country is failing to protect all its citizens or part of its citizens there should be intensive multilateral and regional diplomacy. As we know from the recent past- a country will be inundated with dozens of international visitors.
If all that fails and there is still imminent danger to the population then there could be a use of military force pursuant to a Security Council resolution.In 2009 at the height of the Sri Lankan civil war the R2P doctrine had not even been fully formulated within the UN system and with friends in the Security Council,Sri Lanka was never in any danger.
In the panic surrounding R2P in Sri Lanka- there was a lot of talk of NATO in Kosovo, the US in Iraq, the west is going to invade usetc.- but it must be recognized that R2P or humanitarian military intervention has also been conducted by many non-western states. Vietnam went into Cambodia to get rid of Pol Pot, Tanzania went into Uganda to get rid of Idi Amin, India helped create Bangladesh, and now Russia is threatening humanitarian intervention in Ukraine.
What R2P within the UN system tries to do is to systematically develop the concept that countries have in the past used unilaterally, to evolve a consensuson the meaning and content of humanitarian intervention and also tocreate a recognizable process without leaving it to the arbitrary whims of individual nation states. In that sense it should be a welcome development. It should not be the basis for mindless panic.
FIFTH PHASE: - THE WAR ON TERROR
The final and fifth phase of human rights at the international level is the consequences of the War on Terror. This War on Terror was launched by the US under the administration of PresidentGeorge Bush,Dick Cheney and the Donald Rumsfeld. Terrorism in the past was seen as a police operation operating within a human rights framework- for example that is how the British dealt with the IRA or Spain with the Basque nationalists. The Bush administration made it into a "war" both domestic and international - a major conceptual leap that sent human rights activists spinning.
In response to September 11th 2001 the Bush administration basically wiped out many of the safeguards in the law especially with regard to the settled area of human rights law- civil and political right, including freedom from torture-the first generation of rights and especially as it applied to the Muslim population. The US adopted the Patriot Act that had draconian powers- a little like our PTA -and enabled extensive surveillance of the population.Edward Snowden is a hero for many people in that his exposures have forced the US government to cut back on the Patriot Act. There is a new administration in Washington and to be fair they have begun to undo the damage of the PatriotAct but it is still clearly not enough.
In addition after September 11th we have had to deal withthe hell hole known as Guantanamo,a place that at best could be described as a place beyond the law where military commissions are now meting out rough justice, I was involved in one of the cases- the case of Omar Khadr- a child soldier.
Guantanamo will not go away because the US Congress refuses to let any of the inmates into the US to face a fair trial and home countries refuse to take their nationals who are kept in Guantanamo but have not been charged. The American Civil Liberties Union and the Center for Constitutional rights, brave and persistent lawyers, many of them from the Jewish faith, pointing again to the universalist vision of human rights, keep struggling against many odds, including threats to their own security and hate from their neighbours, to protect the rights of their Muslim clients. Yet Guantanamo lingers like a cancer on the body politic.
Finally, the Bush administration’s aggressive pursuit of counter terrorism, has raised a whole host of technological and legal issues.
For example the widespread use of the strategy of targeted assassinations, invented by the Israelis, has created major problems for those of us interested in the protection of civilians.
Under what regime do we look at targetedassassinations? Are they "armed conflict" under an international humanitarian law regime where you can kill combatants including what is now termed"continuous combatants" even while they are sleeping? This is the argument was used by the US with regard to the killing of Osama Bin Laden.
"Armed conflict" is also the framework used to justify targeted assassinations in the form ofbombing an alleged terrorist from the air in a public location or a building regardless of the collateral damage. Under this line of argument wherever an alleged terrorist is present, that place becomes a justifiable military target. In that case no one is safe anywhere as the children in the UN school in Gaza found out. I must immediately add that the ICRC has not endorsed this line of thinking.
In the alternative is apprehending and assassinating terrorists to be approached as a "police style operation" – after all there is no armed battleof any sort taking place. Then the use of force would operate under a human rights regime where you can kill only in self-defense or if such killing is absolutely necessary. For example when pursuing the Boston marathon bombers, a pursuit that is technically a part of the war on terror, no one was bombing buildings from the air and killing Americans and calling it collateral damage. Itwould not even have crossed their minds. They just conducted a police operation.
As you know the American and the Israeli governments would do anything and everything, by hook or by crook to save the life of even one of their citizens. After that someone willmake a blockbuster movie about it and it will win an academy award. But saving the lives of other peoples- that is a different story. As we know the war on terror more often than not values life asymmetrically.
Even in the Sri Lankan context, whenever I hear the words "human shield" or "grey area between combatants and civilians",or "old women forced into building bunkers"are really combatants,my antennas go up. It only means that someone is saying that someone else’s life is not worth saving- usually a member of another ethnic or religious group. Luckily the ICRC so farhas not given into the pressure from the so-called counter terrorism lobby to change the substance of international humanitarian law.
Nevertheless there is an area where new international action is necessary with regard to international humanitarian law and that is in the area of drones and other similar technological innovations used for armed attack. What are the procedures that must be taken prior to a drone attack to avoid civilian casualties? How do we measure the humanitarian doctrines of collateral damage and military necessity in the eventuality of drone attacks? Can drones cross national boundaries using the "hot pursuit" legal argument?
In drone attacks the claim is that collateral damage is far less and the strikes more precise than with the usual type of aerial bombardment but this is deeply contested even by the ICRC who say drones create unreachable military expectations of precision. There is still collateral damage and the surveillance and intimidation of the population is constant andtotal.According to reports children are terribly traumatised by the persistent droning sound above their head throughout the day and night..
There is now a growing international movement for developing an international convention on drones and similar technology.It is time that based on the evidence available we move the international system to start putting the brakes.
I often read morally self righteous articles in the Sri Lankan papers stating that no-one places a spotlight on crimes by the West- well if you want to read an excellent report on the effect of drones on the targeted population go to the report jointly prepared by the Human Rights Clinics of the Stanford University Law School and New York University Law School Human Rights Clinics. At great risk to their lives these young students went to North West Pakistan, lived with the population and then wrote what I believe is an excellent report- a basis for future international action.
The actions of terrorists around the world, the ghastly bombings of civilian places, beheadings of dissenters, journalists and westerners and the absolutely outlandish use of child soldiers are also horrific.I think we were all sick to our stomachs viewing the beheading of James Foley.Perhaps even more sick when we see children training to be suicide bombers. Nothing can condone this kind of behavior.
When I was young I was a complete pacifist but in my work with women and children I have seen the true face of evil- such as for example the actions of Joseph Kony and the Lords Resistance Army in Uganda. I realize that military force may have to be used even in the Sri Lankan context when faced with a ruthless, deadly genius like Prabhakaran who did not know how or when to make peace.
However the deathly nature of modern weapons and warfare compels us to ensure the strict, effective, and proper implementation of the rule of law, especially the laws of war, or we are asking for widespread destruction and impunity. We cannot expect civilized behavior from the terrorists but we can definitely expect it from the member states of the United Nations.
This fifth stage of international human rights evolution described above has therefore been a push back on civil and political rights internationally especially by the counter terrorism lobby led by Israel and the Bush administration.In addition the polarising nature of the Bush administration policiesdestroyed the consensus and universalism that had emerged on human rights in the nineteen nineties leading to fraught discussions both at the Security Council and the Human Rights Council.
At the same time the institutions and processes set up earlier in the 1980s and the 1990s are now working in an even more systematic manner, constantly fact finding, gathering evidence and filing reports. As I said earlier, information on human rights abuses is gathered and processed on a constant basis. As a result violators of human rights today have really no place to hide. We then have this strange paradox of intensive human rights activity from the grassroots upward existing alongside major human rights challenges at the international level.
As a global community we have inherited this edifice of human rights that has been created over decades. We cannot escape it and our best diplomats have understood that and have engaged it successfully at different stages of our history. Nevertheless the one question on everyone’s mind is of course the question of double standards. I hear this constantly. If the US is not in the dock for Iraq why anyone else?
Before I speak about the important issue of double standards let me point out twothings: _
First- are we asking the correct question when we scream "Why the double standards"?Should our response to international criticism by a defensive "we may be wrong but you are worse". Is it not better for us to just focus on doing the right thing regardless of what others say ordo? After all noone will be able to criticize us if we do not give them the room to do so.
Second, while it is true that it is difficult to punish the permanent five members of the Security Council and hold them accountable for violations because of their veto, Sri Lanka is not the only country that is criticized internationally. As you saw with the recent incidents in Gaza, the High Commissioner for Human Rights was as critical if not more critical of Israeli actions and the Human Rights Council has passed two resolutions against Israel including one asking the OHCHR to conduct an inquiry along the lines of the resolution on Sri Lanka. In this case one must also point out that the United States was isolated. Israel may not be punished by the UN system because of the US veto in the Security Council. But, she will be monitored and evidence will be gathered, perhaps for action at some future date.
Nevertheless, there is no question that international power and politics insulates some countries over the others.And yet, the truth is that double standards do exist even in national legal systems. Let us turn the searchlight inward-let us take our own national system. A minister ties someone to a tree- he is not arrested. A religious figure incites violence, he is not arrested, a politician murders another politician in cold blood in front of a crowd with plenty of witnesses but now wanders free- yes we too have impunity for the rich and the powerful. National and international legal systems are not that different.
So we must ask ourselves- is the answer to these double standards at the national and international level to do nothing, dismantle the entire criminal justice system, let everyone go free and allow for widespread impunity. Surely not- the answer is to keep putting the pressure so that impunity will eventually disappear and everyone will finally be held accountable.
The humanitarian approach to all this has always been very patient- one step at a time. Justice for one person is better than justice for none. There may be double standards but with one conviction there will also be a measure of deterrence. Convictions always send a very strong signal.After the case against Thomas Lubanga was filed by the ICC with regard to child soldiers whenever I met rebel groups in the Sudan or even the Philippines the first question was- "what about the ICC"? That to me is the beginning of deterrence.
Today in Sri Lanka we are immersed in a climate of cynical realism and arguments about how to out conspire the next conspiracy theorist. We are told today that the international community is dominated by the US and other imperialist powers.These powers are out to get us and force regime change. We of course have done nothing wrong. We are told that we should not participate in what is a western, hegemonic UN process. Anyone who consorts with the West or the UN is a traitor. Our duty is to subvert the system until it changes- when that is, is anybody’s guess. We are urged to embrace and celebrate our status as a brave, international outcast. A kind of 1960s Macho nationalism that is loved by many prevails in Sri Lanka today.
And yet we are searching desperately for foreign direct investment. Over 60% of our exports go to the west, including our children for education and employment. We also want to become the capitalist hub of South Asia as well as a pleasure and tourist resort. Surely there must be a more sophisticated response?
This sort of cynical realism, which lives in constant fear of encirclement and in a state of siege, is not the best mindset to move our country forward- it never is. It is a ploy of defensiveness and evidence of a lack of imagination. It cannot be our future. We must have hope that we will eventually have the courage to confront the ugliness within us and that truth and justice will prevail even in the hardest of cases.
As you can see from what I havesaid so far- human rights is a theory and apractice at the United Nations has been long in the making. It is not the plot of an individual country or groups of countries- it is a discourse used by everyone and is precious to many blocs around the world. It is a concept that has grown and evolved because of situations on the ground whether it isWorld War II, apartheid in South Africa, disappearances in Latin America or Genocide in Rwanda or the new technologies of war.
Just before I left the UN I met an Asian diplomat who said that the days of human rights and western dominance were over and that it may be the best time to leave. As he said this with a cynical smile I thought of the countless women and children whom I have met around the world, victims of the worst kind of brutality for whom human rights was devoid of politics and a real whisper of hope. I remember one woman in Rwanda, who had been brutally raped and who was forced to kill her own child by burying him in the sand, say to me, "Take my story, take it to Geneva- this must never happen to another woman".
Martin Luther King, in a quote that is very famous, once said "the arc of history bends toward justice". I too believe that- it is often a matterof time- one year, ten years perhaps even a hundred years but the search for truth and justice will happen. Thank you
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Last Updated Jun 25 2016 | 07:51 pm