Sovereignty vs. the Right to Life

Photo courtesy Vikalpa

The most fundamental and important right a human being has is her right to life. This cannot be justified through first principles because this is itself a first principle. In common sense morality, it is granted that a human being has a fundamental right to life, and that this right trumps all other rights such as the right to liberty and the right to property. It is assumed that you cannot kill your neighbour merely because he’s trying to forcibly take a part of your land for his use. It is assumed that you cannot kill him even if he sleeps on your front yard. If you do not accept this, read no further. I don’t have an argument that could change your mind. There are no universally compelling arguments that could persuade even aliens, computers and rocks. But since you don’t have a right to your life, then I might as well kill you for some utilitarian reason, such as using your biological organs to save more than one life.

Having granted humans the right to life, and having granted that it’s the most fundamental of all rights, we must look at the world in that light. Rights are constraints on the actions of moral agents. If you have a right to your property, that means I can’t take it from you by force, even though I would like to. If you have a right to liberty, that means I can’t shut you up just because I don’t like what you are saying. One may plausibly ask at this point “what about my right to not hear things I don’t like?” This is a valid argument. But it is usually understood that there is a hierarchy of rights. Certain rights are more fundamental and important than others. Do I have a right to have sex with any woman I like? Perhaps I do. But that right is trumped by the right the woman has not to be raped. Therefore I have to find a way to have sex with the woman without raping her, or forcing her in any way.

Since the right to life is the most fundamental and important right of all, there’s no other right that could trump it except the right to life itself. Suppose that I invite some people to my house and tell them upfront not to do certain things that I do not approve while they are within my property. For example, I might tell them not to smoke while they are inside my house and threaten to kick them off my property if they do so. It is generally understood that I can do this because I have a right to my property and those who have been invited do not. But what if kicking them off my property mean certain death? For example, what if there was a flood outside and if I kicked a person out, he would surely die? Do I still have a right to kick him out of my house? Again it is generally understood that I can do that no longer. This is because the right to life trumps all other rights, including my right to my property. In this situation, the only legitimate reason I could have to kick him off my property is if he posed a mortal threat to me or the others. For example, if he held a gun at my friend and if I was reasonably confident that he would pull the trigger, I am justified in kicking him out of my house even if that meant death for him by drowning in the flood. All this follows from common sense morality.

So, although humans have a fundamental right to life and that is the most important of all rights, I do not say that that right is inalienable. There are circumstances under which it is reasonable and moral to take that right away from someone. But such situations are extremely rare. Consider the case where you can save five people by killing one person and donating his biological organs. Most people find it morally reprehensible to do so, even though it may lead to better consequences. Generally the only moral reason one can have to strip a person off his right to life is if it was a matter of self-defence. Here too the bar is set high. You cannot kill a person simply because he was going to punch you on the face. There should be a mortal danger to your life from him, or at least a credible threat of serious, irreversible injury.

Now suppose there is person X, his wife person Y, and his neighbour person Z. Persons X and Y are living in a house and it is understood that person Z cannot enter their house without the consent of either X or Y. Suppose that X and Y are not a happy couple, and that X beats Y every evening. What should Z do? Perhaps Z might still decide not to interfere since he has a sense of privacy and he thinks he should not poke his finger in other people’s private lives.

But what if one day Z sees X coming home from work, only this time he has a gun? X and Y argue and fight as usual, only this time Z is reasonably sure that X is going to shoot Y dead? Is it now justified for Z to intervene? I would say yes. In fact, I would go further and say Z has a moral obligation do so. Y’s right to her life trumps all other rights such as X’s right to his property and his liberty.

What if Z failed to act in time, and now he strongly suspects that Y is dead, and that she was killed by X? Is he now justified in intervening? I would say yes. It is not just about acting in a certain way that would ensure Y would actually get to enjoy her right to life. It is also about acting in a way that would ensure everyone else in the future would get to enjoy the right to life. If X was not punished because Z did not interfere, X or someone else like X might as well commit a similar crime.

It is in this light that allegations against Sri Lanka on human rights have to be viewed. As long as an actual crime where forty thousand civilians, who did no bear arms, and therefore posed no mortal threat to the lives of army personnel, took place, the state cannot absolve itself, or rid itself from allegations simply by appealing to its independence or sovereignty. Independence and sovereignty alone cannot immunize you to charges of human rights violations, especially the ones that charge you of taking people’s lives. Therefore, a second argument is needed.

There are two salient arguments that can be presented as the second argument. One, no human rights were violated, or at least the right to life of civilians (people who did not bear arms) was not violated. This argument I find to be preposterous. However, I am not going to argue against it here. The second argument you can present is more interesting. You can argue that even though a crime took place, justice has been done, or is being done internally, within the state.

Here’s where I take issue with Chris Nonis, the Sri Lankan High Commissioner to UK who recently said in a CNN interview “The Lessons Learned in Reconciliation Commission, it is important for you to understand, is not based on the principle of punitive justice, where you punish people. It is based on the principle of restorative justice, where each one gets an opportunity to be able to hear what went on, whether the victims or the perpetrators, and that’s the — that’s the essence of the LLRC and it’s the similar — a similar report and a similar principle behind the TRC of South Africa.”

There is a ridiculously obvious problem with this view. The common sense view of justice is that of a punitive justice. If you killed my brother, I expect you to be punished. I don’t expect to have a chat with you afterwards about you killing my brother, about how it affects the two of us, and about what the two of us learnt from it, and finally forgive you. Secondly, according to the common sense view of justice, if restorative justice to have any legitimacy at all, it should be given by the victim of the crime, not its perpetrator. I can decide whether to punish you or forgive you for killing my brother. But you can’t decide for me to forgive you. What gives the TRC its legitimacy is the fact it was created by those who were the victims of the crimes. Mandela was clearly a victim of the crime. Can the same be said about Mahinda Rajapakse?

The point of this article is not to assert that foreign countries should interfere. The point is, for the foreign countries not to interfere, the state of Sri Lanka should give them a legitimate reason. You cannot hide behind that concepts that doesn’t make any sense.

  • Nick Hart

    Here is an alternative scenario: a gang of terrorists is holding a group of hostages, which they will kill if their demands are not met. If you meet their demands, it will encourage other terrorists, and many hostages may still be killed. As a matter if policy, most states do not negotiate with terrorists for those, and other, reasons.

    Alternatively, you can project force against the terrorists, with the intention if killing or capturing them. This will probably lead to the deaths of many, perhaps all, the hostages, but may be the best choice in the long run because it will eliminate this particular gang of terrorists and discourage similar activities by others.

    Discuss.

    • Sharanga Ratnayake

      The reason I’ve explicitly denied that rights are inalienable was precisely to address these kinds of questions. The idea of absolute, inalienable rights doesn’t make a lot of sense to me. I’m a fan of consequentialist/utilitarian thinking too. But the problem is you cannot define a concept of utility in a sentence or two that would not lead to a hell-world. In order to make sure the world does not become a hell-world, you’d have to capture all human value into the concept of utility, not just lives saved, or the number of living years. My view is that if you capture all human values into the concept of utility, your utility calculation will end up in a world where people have rights that are extremely difficult to take away from them.

      Anyway, in the scenario you provided, you realize that before you do anything, you must actually do the utility calculation, right? You cannot go ahead straightaway and then pretend that you’ve done the utility calculation. I can see a holes in your thought experiment that would allow me to not go in trying to kill the terrorists. But it’s easy to alter the thought experiment in such a way that it is easy to calculate utility, and would mean I have to go in and kill. I would push the fat guy on the footbridge in that famous Trolley problem too.

      But if you look at real world hostage situations, there are so many variables to consider, and the people involved in the rescuing act very cautiously. You won’t blow up a bank just so you can kill the terrorists. You negotiate with them, try to make deals with them, try to get one guy to defect on the others and so on. There are a lot of things you do before you secretly send armed men in. Even there you make it sure that hostages have a reasonable chance of survival, which is why you didn’t blow them all up in the first place, and decided to endanger the lives of your own law enforcement officers. It’s rarely if ever you’d come to the conclusion that you need to flatten the whole place down with heavy weapons.

    • Sharanga Ratnayake

      One thing forgot to mention. If your hostage rescue operation ended up killing the majority of the hostages, there would be an investigation.

      • David Blacker

        If your comments about hostage situations is meant to be a parallel to the final phase of the war, you will find that the operation was very similar to a hostage rescue. There were negotiations, there were defections, and then there was a military assault in which the vast majority of the hostages were safely freed. The place wasn’t “flattened down with heavy weapons”, nor were the “majority of hostages killed”.

        It is also important to understand the difference between a police rescue operation against criminals such as bank robbers and a military one against terrorists. It is because there is a sharp distinction that — for example — Canada moved the primary hostage rescue mission from the Mounties’ Strategic Response Unit (SRU) to the military’s Joint Task Force Two (JTF-2). It was recognized that a police operation had the hostages as a priority, and the arrest of the criminals as a secondary one, with the killing of the latter being a last resort. It was understood that in a terrorist situation, the immediate killing of the hostage takers in the quickest and most efficient manner was the best way of freeing the hostages safely. The SRU cops were uncomfortable with this, and so JTF-2 became Canada’s tier one HR unit.

        Vaguely suggesting that the hostages are always the priority is ignorant. The death of the terrorists could likely save more lives in the long run, or perhaps a “more important” life or lives. It was for this reason that the US was ready to shoot down passenger airliners on 9/11 after the first two hit the WTC and it was understood that the Pentagon and White House were possibly next.

    • cooley

      Interesting read. However, agree with Nick Hart. While valuing the right to Life by all means, it should not be used for carrying out threats to a country’s unity, or should not prevent action to end a Terrorism which posed such threat, and marginalized and threatened the right of Life of millions of people.

      • Sharanga Ratnayake

        That may be what Nick Hart believes, but that is certainly not what he says in his comment. The point he’s making simply even under common sense assumptions, sometimes sacrificing someone’s right to life is justifiable. I agree. I think there’s a really high bar for it.

        You would agree however, that even within Nick Hart’s idealized thought experiment, the death of large number of hostages would warrant an investigation, right?

        ***
        As an aside, when people read words like “government” and “terrorism”, they unconsciously assign a lot of ideas and meanings. For example, people think government has an authority that other agents do not. As a brute fact it does. But in arguments, if you think government has special political authority, it must be justified. I’ve read a lot about this subject, and I have never found anything satisfying (yeah Rawls, Locke, Hobbes, all of them).

        Without changing anything else in Nick Hart’s thought experiment, I change “terrorists” to “villagers who’ve taken some employees hostage”, and say the villagers are asking for ransom from Coca Cola. Suppose that the law of the land allows Coca Cola to take matters onto their own hands in such situations and Coca Cola somehow end up executing a rescue operations which defeats the villagers, and somehow ended up killing most of the hostages. Food for thought.

    • Lord Shiva

      @Nick Hart – The Tigers Tigers were created as aresult of the State Terrorism and Sinhala hooliganism. Tigers were a product of the Sinhala Buddhist Apartheid reacism and you may call them as terrorists and many nations banned for political reasons but there are still many nations, leaders and the global meadi call it as “rebels”. Who is correct?
      Why you discreminate, when a group of affected and oppressed people commit crimes, they are called as “terrorists”, but you do not brand the regime that oppresses, human rights abuses, commits genocide and war crimes as a terrorist regime?

  • David Blacker

    Aside from the fact that the author’s got it wrong on the right to life trumping all other rights, and that the only time that right can be itself trumped is in the face of mortal danger (what if someone is being raped or tortured; that isn’t necessarily a mortal threat, but don’t you have the right to take a life to prevent that?), he seems to reject the concept of restorative justice simply because he doesn’t like it. This is ridiculous when you consider that this concept is both accepted and in use (South Africa being the usual prime example).

    The flaw with restorative justice in SL is that both parties (accused and victim) must agree to the system, and also agree that there is no better system in the given context. Also, systems of restorative justice are usually used as a means to an end that is more than simply justice itself. In South Africa, a move to majority rule was being hindered because the Apartheid regime feared that if it gave up power, its agents would be prosecuted for crimes against the rebels, but it understood that it couldn’t hold off the rebels forever. The rebels themselves couldn’t depose the regime by force alone, and their willingness to step down was needed. So the TRC was created as a means of restorative justice and to avoid large scale prosecutions. Nevertheless, it was agreed in advance that certain heinous crimes would be prosecuted and those found guilty punished.

    In SL, there is no such eventual goal for both parties to strive for beyond vague reconciliation that neither party really believes in. The Tamil nationalists won’t agree to restorative justice because their goal is to punish who they believe to be guilty and thereby gain political ground; restorative justice will not give them this. On the other hand the GoSL believes itself safe from any form of prosecution and sees restorative justice as a sop to hand the defeated.

    • Sharanga Ratnayake

      Oh, David…

      Aside from the fact that the author’s got it wrong on the right to life trumping all other rights, and that the only time that right can be itself trumped is in the face of mortal danger (what if someone is being raped or tortured; that isn’t necessarily a mortal threat, but don’t you have the right to take a life to prevent that?

      In the article I said “You cannot kill a person simply because he was going to punch you on the face. There should be a mortal danger to your life from him, or at least a credible threat of serious, irreversible injury.” In this articles, rights are not defined as absolute, inalienable, almost supernatural things, which is the way they are usually defined. The account of rights given is a common sense view of rights. It is generally understood that the right to life is the most important and it trumps all other rights. I’ve explicitly mentioned irreversible injury, and I’ve explicitly stated none of these rights, including the right to life, are inalienable.

      Secondly, I can guarantee you that if you killed someone to prevent rape, there will be an investigation and you will have to testify in court. Whether you are guilty or not will be judged by a third party. Here, first, there’s going to be a court case. You can’t avoid that. Second, you do not get to setup your own court and call it restorative justice.

      he seems to reject the concept of restorative justice simply because he doesn’t like it.

      Please David Blacker, at least do me the courtesy of reading the article before you criticize me. If I had not given a reason for Chris Nonis’ restorative justice, how come you end up saying the exact same thing I said in the article when I criticized restorative justice. I said “according to the common sense view of justice, if restorative justice to have any legitimacy at all, it should be given by the victim of the crime, not its perpetrator….What gives the TRC its legitimacy is the fact it was created by those who were the victims of the crimes.” How come you end up saying pretty much the same thing, as when you say “The flaw with restorative justice in SL is that both parties (accused and victim) must agree to the system”?

      Perhaps this was an honest mistake. But taking someone’s reason to object to something, presenting it in different words, then saying the other guy’s objection is baseless, takes a lot of brass.

  • Nick Hart

    Rights do not exists in a vacuum. They derive from established coda, whether legal or moral, and and often assume their authority — and acceptance –from established concomitant obligations.

    A representative democratic government has one clear and overriding obligation, which is to act in the best interests of the majority of its own citizens. This nationalistic ‘majoritarianism’, which is fundamental to parliamentary democracy, will ideally include elements of judicial and social pluralism designed to smooth the rough edges of competing political and cultural ideologies.

    Examples are the US and UK, with the often profound political and ideological differences represented by Democrat v. Republican and Labour v. Conservative. In both cases, the minority broadly accept the obligation to accede to ‘discriminatory’ policies, insofar as they may discriminate in favour of the will of the majority, in order to benefit from the concomitant rights and privileges of a functioning democratic state.

    The concept of a ‘right to life’ is, on the face of it, so non-specific as to be nonsensical, in part because there is no concomitant obligation. You may say that if you pay your taxes and obey the law — you fulfill your obligations to the state — you have a right to expect the state to protect you and fulfill its legal obligations to you. But to uphold your ‘right to life’? How, exactly, particularly if your self-defined ‘right to life’ conflicts with someone else’s?

    In the case if Sri Lanka, does the minority have a right to impose its will on the majority by prosecuting a vicious, brutal and hugely damaging 30-year civil war, aided and abetted by outside vested interests? Does the government have an obligation to end the conflict in the interests of the majority?

    Perhaps these questions should be honestly asked and honestly answered by all concerned before considering such nebulous corollaries as ‘right to life’.

  • Candidlee

    First line of the last paragraph above should begin: “Finally, the author in the 2nd to last paragraph…” Apologies for the error.

  • Sharanga Ratnayake

    You argue as if I said the only scenario that would allow you to take a person’s life is if there was mortal danger. I’ve said “There should be a mortal danger to your life from him, or at least a credible threat of serious, irreversible injury.” Notice the use of the grammatical conjunction “or”? it is used to capture two kinds of things. The first part captures mortal danger. The other part captures things that are not mortal but nevertheless may be heavy enough to justify killing.

    In case it is not obvious, irreversible injury doesn’t only mean physical injury. It also captures intangible injury, such as those of psychological nature. The point was, only extreme harm or the threat of such harm could justify kicking out the guy from your house. This is a practical, a very much based on common sense view of rights. This is how people usually think. But they do not think straight if one of the parties involved is the government.

    This isn’t about having to avoid court; it is about whether an action is justified or not.

    No, that is only one aspect of the issue. The other aspect is whether there should be a formal, impartial procedure to determine whether an action is justified or not. I thought this was clear. Certain such actions demand they are investigated and judged in such a way. Again this is just common sense. If it was a corporation that was alleged to have killed 40,000 civilians, people would have no trouble realizing that the corporation cannot setup its own committee, talk about what happened, and call it restorative justice. Yet somehow when it is the government they lose all common sense they have.

    if what you say below wasn’t supposed to be your view of restorative justice, then I take it all back:

    Then please take it back. If you read again the part you’ve quoted, you’d realize that it couldn’t be anyone’s view of restorative justice. The statement wasn’t about restorative justice at all. The term “restorative justice” isn’t even in the quote. That statement was a statement about justice, specifically it stated that the default view of justice is that of punitive justice. Note that I so far I haven’t said restorative justice is unjust. I’ve only said the default view is a punitive one. So if I wasn’t clear earlier, I hope now I’m clear on this. Punitive justice is the default common sense view of justice. That doesn’t mean restorative justice is against common sense. But it is still not the default common sense view.

    Then I go on to define what the key necessary factor is for restorative justice to be thought of as legitimate. The key necessary factor is that the victim should agree to it, and think that is just. That is a necessary factor, not a sufficient factor (which includes the other party agreeing to it etc.). When even the key necessary factor is missing there’s no point in talking about sufficient factors.

    • Nick Hart

      A minor point: the default view of justice is the application of the law, whatever that might be. In Western democracies it usually, but not always, involves punishment, but in many other cultures it involves restoring honour and financial loss.

    • David Blacker

      “I’ve said “There should be a mortal danger to your life from him, or at least a credible threat of serious, irreversible injury.” Notice the use of the grammatical conjunction “or”? it is used to capture two kinds of things.”

      Rather than restating the obvious, perhaps you should pay attention to what I’m actually saying. It is because I had noticed your point on “irreversible injury” that I asked you, “Is rape, child abuse, torture definitively irreversible as injuries?” Not all of these are necessarily irreversible.

      “In case it is not obvious, irreversible injury doesn’t only mean physical injury. It also captures intangible injury, such as those of psychological nature.”

      That’s highly subjective and impossible to predict, so it seems difficult to base a criteria on it as you’re doing.

      “No, that is only one aspect of the issue. The other aspect is whether there should be a formal, impartial procedure to determine whether an action is justified or not

      Certainly, but you have used a court appearance to suggest an action is more questionable than another, when in reality the court appearance will be required regardless of the extenuating circumstances; the latter being thus adjudged by said court. The court appearance itself doesn’t make a person more guilty. Why don’t you actually think through your responses or, perhaps start over? I fear you’re painting yourself into a corner.You said several times there is the common sense factor; and that is often at odds with the legal, and again very subjective. Should there have been an impartial inquiry into the bombing of Dresden or Hiroshima? What does common sense dictate?

      “If it was a corporation that was alleged to have killed 40,000 civilians, people would have no trouble realizing that the corporation cannot setup its own committee, talk about what happened, and call it restorative justice. Yet somehow when it is the government they lose all common sense they have.”

      If you were an employee or beneficiary of said company, would the attitude be much different to that of a citizen of a country governed by the government in question? I think not. It isn’t a case of companies versus governments so much as a point of view. We routinely accept as necessary the most horrendous war crimes such as unrestricted submarine warfare, nuclear attack, and fire bombing simply because the goal was just. That is simply perspective.

      “If you read again the part you’ve quoted, you’d realize that it couldn’t be anyone’s view of restorative justice. The statement wasn’t about restorative justice at all. The term “restorative justice” isn’t even in the quote. That statement was a statement about justice, specifically it stated that the default view of justice is that of punitive justice. Note that I so far I haven’t said restorative justice is unjust. I’ve only said the default view is a punitive one. So if I wasn’t clear earlier, I hope now I’m clear on this.”

      I would appreciate it if you don’t play semantics simply to get out of a corner. You may not have mentioned the phrase “restorative justice”, but you have preceded it with a quote from Nonis on restorative justice and stated that the only form of justice acceptable is not this version, but one of punitive justice. Now before you split hairs once more and claim you never used the word “acceptable”, let me suggest that by suggesting one system is the default one and dismissing the other as absurd, you are suggesting one is acceptable and the other is not.

      “That doesn’t mean restorative justice is against common sense. But it is still not the default common sense view.”

      If you prefer to now claim that you’re not in fact dismissing restorative justice, I will accept that and assume you were on crack or something when you wrote “If you killed my brother, I expect you to be punished. I don’t expect to have a chat with you afterwards about you killing my brother, about how it affects the two of us, and about what the two of us learnt from it, and finally forgive you.”. I don’t really want to waste time trying to get you to admit you said something that’s there in black and white.

      “The key necessary factor is that the victim should agree to it, and think that is just.”

      Sometimes necessity is the mother of acceptance, and when one form of justice is inaccessible, it becomes necessary to accept another; which is what we see in civil wrongful death suits which stand in when the accused in a murder case is acquitted by a criminal court. Would the victim’s family say that they agreed to this form of justice? Perhaps not, but does that make it less just? I think not.

      • Sharanga Ratnayake

        The fact that the criteria under which you would be allowed to kill a person (kick the person out the house to die) is vague, doesn’t mean such criteria doesn’t exist. Rights aren’t absolute and inalienable. The criteria under which they can be violated aren’t clear. That doesn’t mean they don’t exist. Rarely a person is justified in killing another person. The government somehow has a licence to kill.

        ****

        The court appearance isn’t there to suggest certain actions are more questionable than others. It’s there to suggest that certain actions are inherently morally significant. You probably won’t have to go to court for reckless driving. But you’d certainly have to go to court if you killed someone, even if you did that to save someone else. Things like killing and raping, things that are as they say “Malum in se”, pretty much always go to court when they are done by individuals. Whether they should be punished or not is decided there. Governments shouldn’t get a free pass. Should there have been an impartial inquiry into Dresden and Hiroshima? Absolutely.

        It’s not about the law. It’s about common sense. None of this was about how law actually behaves (Mervyn Silva), but about how it should behave.

        *****

        If you were an employee or beneficiary of said company, would the attitude be much different to that of a citizen of a country governed by the government in question? I hope so. I don’t know whether you’ve worked for a private company. I work for one of them. I can tell you I won’t stay there if I were to learn that they are killing employees of their competitors to get a competitive advantage.Government employees clearly don’t see it that way. Their employer even binds its own employees to trees.

        I’m sympathetic to the consequntialist argument. I may accept an action if the goal was just. But the goal should actually be just, and should have enough significance to justify the means. The problem is this isn’t always the case. Take the Hiroshima bombing for example. There are many people who think that that action was just. But if that is the case, it should be just even if it was done by an individual without governmental authority. Suppose it was some guy who made a nuclear bomb on his own, and dropped it on Hiroshima to end the war quickly. I’m quite sure that there won’t be as many people who think it was the right thing to do and the person shouldn’t be punished. They have no problem with it only because it was done by the government. As many psychological experiments, such as the Milgram Experiment and Standord Prison Experiment show, peoples’ thinking get screwed when authority is involved.

        ***

        let me suggest that by suggesting one system is the default one and dismissing the other as absurd, you are suggesting one is acceptable and the other is not.

        I will split hairs as long as you keep trying to distort my view. If my view wasn’t clear in the article, I’m pretty sure I have stated it more clearly in the comments. Here’s the gist of my view. The default common sense view of justice is that of a punitive one. If a crime happened, the victim usually expects that the perpetrator is punished. This doesn’t mean it is inherently superior to any other form of justice, or that any other form of justice is against common sense. It only means that if any other form of justice is to be adopted, some other conditions must be met. Restorative justice is one such alternative and there are conditions that should be met for it to have legitimacy. In the case of Sri Lanka, these conditions clearly aren’t met, while they were in South Africa. Nonis is pretty much suggesting it okay for Sri Lanka to go with restorative justice because it was adopted by countries like South Africa. But it’s not okay as long as the most necessary condition for it is not met.

        I certainly wasn’t on crack when I said “If you killed my brother, I expect you to be punished.” Suppose that I’m going to rape and kill your wife? Do you expect me to be punished, or can we talk about restorative justice? This is not a rhetorical question. This may sound like a cheap shot, but it’s not. I expect an answer.

        ****

        Perhaps not, but does that make it less just? I think not.

        Sorry, the correct answer to this is justice has not been done. The mere fact that one form of justice is not available doesn’t mean any other form of justice is automatically made legitimate. That other form of justice has conditions of its own to be thought legitimate. You can call it anything you like. Perhaps you can call it social good, the greater good, utility maximization or whatever. But certainly it is not justice.

        • David Blacker

          ” The criteria under which they can be violated aren’t clear. That doesn’t mean they don’t exist. Rarely a person is justified in killing another person. The government somehow has a licence to kill.”

          I didn’t say that the criteria doesn’t exist; I said your criteria is vague. And yes, governments do indeed have a license to kill, just as they have a license to do many things that individuals do not, from making laws to collecting taxes and punishing criminals.

          “The court appearance isn’t there to suggest certain actions are more questionable than others. It’s there to suggest that certain actions are inherently morally significant.”

          Once more, I am not questioning the necessity of court appearences. Do try and pay attention. I am questioning your response. When I pointed out that a non-lethal attack could still justify a lethal defense, you responded that such circumstances would result in a court appearance, implying that a lethal defense against a lethal attack would not have the same requirement. The moral significance of killing isn’t absolute, and varies widely. For instance the morality of killing in war is different to that of killing in civil society. Do you understand the significance of that?

          “Things like killing and raping, things that are as they say “Malum in se”, pretty much always go to court when they are done by individuals. Whether they should be punished or not is decided there. Governments shouldn’t get a free pass.”

          Only if you believe that war itself is a criminal act per se. Killing in wartime has a different significance to killing in civil society. Governments have armies not so that they can march up and down in smart uniforms and salute each other; they are there to kill in wartime. So killing in war has no special moral or legal significance. Killing is a natural process of war and doesn’t require special attention, the way it does if your neighbour invades your home and you kill him. To warrant specific attention, an act must at least seem improper or possibly criminal.

          “It’s not about the law. It’s about common sense. None of this was about how law actually behaves (Mervyn Silva), but about how it should behave.”

          Yes, I’m sure we all have commonsensical opinions on how the law should behave, but that’s hardly relevant.

          “I hope so. I don’t know whether you’ve worked for a private company. I work for one of them. I can tell you I won’t stay there if I were to learn that they are killing employees of their competitors to get a competitive advantage.”

          Good God, do you even read what you’re writing? You’re comparing apples and oranges. Private companies cannot kill people under any circumstances, unlike governments. It is not a legitimate parallel. A legitimate part of a government’s role is national defense, which sometimes requires killing. So if you’re comparing companies to the government you have to find the right equivalent. Companies compete with each other using strategies and tactics which are legal, just as the government’s killings are. So would you leave a company for carrying out these legal and legitimate acts of competition? Of course not. So why would a citizen of a country have reason to when the government legitimately kills an enemy?

          “Government employees clearly don’t see it that way.”

          The equivalent of a company employee in this context is a citizen of the nation governed, not just government employees. I already mentioned this.

          “Take the Hiroshima bombing for example. There are many people who think that that action was just. But if that is the case, it should be just even if it was done by an individual without governmental authority. Suppose it was some guy who made a nuclear bomb on his own, and dropped it on Hiroshima to end the war quickly. I’m quite sure that there won’t be as many people who think it was the right thing to do and the person shouldn’t be punished.”

          Lol, this is descending into farce. I’ll deal with the actual reasons for Hiroshima being a war crime later, but it has nothing to do with individual action versus governmental action. As I have already pointed out to you, there are many things that a government can legitimately do, which you cannot. The government can punish criminals, you cannot. The government can collect taxes, you cannot. The government can make laws, you cannot. Are all these things therefore unjust and illegitimate because if you had done it it would be questionable? Don’t be silly. There is no offensive military action that could be legitimately carried out by an individual, be it destroying a factory or sinking a battleship, unless that action were carried out by an individual with the express authority of the government behind him. So if the US had sent a commando with a nuke into the middle of Hiroshima and he had detonated it, would people see that as less just? They would not, just as they see the Seal Team 6 killing of Bin laden to be just as legitimate as an airstrike.

          The reason most people believe nuking Hiroshima and Nagasaki to be just, legitimate, and necessary, is because of the myth that it was the only way to get Japan to surrender, and if not, the required Allied invasion would have cost tens of thousands of Allied lives. This is a lie that has been told and retold. In reality Japan attempted to surrender something like half a dozen times between late 1944 and the end of the war, and even offered a surrender under any conditions the Allies imposed. All surrender overtures were ignored, and the nukes were dropped. They were an unnecessary act of vengeance and a demonstration of US power. That is why it is a war crime.

          “I will split hairs as long as you keep trying to distort my view. If my view wasn’t clear in the article, I’m pretty sure I have stated it more clearly in the comments. Here’s the gist of my view. The default common sense view of justice is that of a punitive one. If a crime happened, the victim usually expects that the perpetrator is punished. This doesn’t mean it is inherently superior to any other form of justice, or that any other form of justice is against common sense.”

          As I said already, I’m willing to accept your clarification, but ease off on the crack when you’re writing, because your dismissive tone and use of ridicule might lead people to understand that you’re being dismissive and/or ridiculing a concept.

          “I certainly wasn’t on crack when I said “If you killed my brother, I expect you to be punished.” Suppose that I’m going to rape and kill your wife? Do you expect me to be punished, or can we talk about restorative justice? This is not a rhetorical question. This may sound like a cheap shot, but it’s not. I expect an answer.”

          Shouldn’t you ask the South Africans?

          “Sorry, the correct answer to this is justice has not been done.”

          Subjective opinion, again, I’m afraid. You can’t call it injustice simply because you don’t like a verdict.

          • Sharanga Ratnayake

            This’ll be my last comment on this.

            Basically, you argue as if you have already established that government has special authority to do things that individuals and corporations cannot do. But in actuality, you haven’t. Of course in the real world, as a matter of fact, they do. The Sri Lankan government, for example, is so powerful that it can crush you like a cockroach if it wanted to. But this is a descriptive account of governmental authority. What is needed is a prescriptive account of governmental authority. If you want to give a such an account of governmental authority, you should start from first principles and build a theory upon it. This is what political philosophers such as Hobbes, Locke, Rousseau and Rawls have tried to do for centuries. They haven’t really succeeded, so I’m pretty sure you won’t succeed either.

            My view is that if you start with common sense principles and stick to them, you end up doubting whether government has the authority to do any of the things it does, the way they do them, such as forcing you pay taxes by threatening to use physical violence, and using physical violence. But this is a different discussion. In this article, I have focused only on one aspect of governmental authority – the authority linked to sovereignty.

            Since you haven’t considered any of these problems, you think governments can kill people, and companies cannot kill people under any circumstance. You think you have established that, but you haven’t. You just take it for granted that it is legitimate for a government to kill people, and it is not legitimate for a company to do the same (perhaps even to save the world). This would be okay if the article wasn’t questioning such governmental authority in the first place. You can’t say it just does as a brute fact, and argue from there.

            **
            South Africans like restorative justice. So I can rape and kill your wife and not be punished?

          • David Blacker

            “Basically, you argue as if you have already established that government has special authority to do things that individuals and corporations cannot do. But in actuality, you haven’t. Of course in the real world, as a matter of fact, they do.”

            Lol, since you’ve conceded that in fact government does have that authority, my need to establish it is superfluous, but thanks for reminding us.

            “What is needed is a prescriptive account of governmental authority. If you want to give a such an account of governmental authority, you should start from first principles and build a theory upon it. This is what political philosophers such as Hobbes, Locke, Rousseau and Rawls have tried to do for centuries. They haven’t really succeeded, so I’m pretty sure you won’t succeed either.”

            Perhaps that is what you need; I myself am supremely uninterested in that aspect. If you require reality to be shrouded in philosophy so that it is more palatable to you, I’m afraid you’ll have to dip your spoon elsewhere. I have responded to your article with my views.

            “My view is that if you start with common sense principles and stick to them, you end up doubting whether government has the authority to do any of the things it does, the way they do them, such as forcing you pay taxes by threatening to use physical violence, and using physical violence. But this is a different discussion. In this article, I have focused only on one aspect of governmental authority – the authority linked to sovereignty.”

            Then you must make the case on how the issue of sovereignty can be looked at differently from things like taxes, laws, and other areas in which authority has been given to government by the citizenry. Currently, it is rather childish to be building a theory based on the opinion that the government has no authority to kill in the defense of the nation, when in fact government does indeed have that very authority. Until you have established that government has no such authority, your theory has no merit.

            “Since you haven’t considered any of these problems, you think governments can kill people, and companies cannot kill people under any circumstance.”

            What are these “problems” you speak of? You haven’t set forth any problems.

            “You think you have established that, but you haven’t. You just take it for granted that it is legitimate for a government to kill people, and it is not legitimate for a company to do the same (perhaps even to save the world).”

            As I said before, I don’t need to establish anything. Unless you can state for me any laws or precedents that forbid government-controlled militaries from killing in time of war, it is a moot point. The same goes for private companies (or individual citizens). And your silly comment about “saving the world” evidences how little attention you are paying to the debate. We have already established last week that it is permissible for individuals (and therefore private organisations) to kill in self-defense. Your hypothetical situation was of a private company killing to gain advantage over a competitor and it was to that I responded. If you would only pay more attention to what is being said to you, and try and stay focused on what you yourself have put down, you could save yourself a lot of embarrassment.

            “You can’t say it just does as a brute fact, and argue from there.”

            It is a brutal fact, yes, If you don’t want it to be regarded as such, make the case for it. You have simply assumed that government has no such authority, and argued from there.

            “South Africans like restorative justice. So I can rape and kill your wife and not be punished?”

            Is that what the South Africans have told you? Clearly, you are rather ignorant of how the TRC worked. Gehan Gunatillake has an excellent article on it on Colombo Telegraph; why don’t you read it before you make a bigger fool of yourself.

          • Sharanga Ratnayake

            David Blacker,

            I wasn’t intending to respond, but this need to be given a short response since due to your limitations, you are distorting my statements. I hope this is my last response to you on this.

            The argument isn’t government doesn’t have authority. It isn’t even government shouldn’t have authority. The argument is when government has special authority (kind of authority that no one else has) that needs to be doubted because if you take common sense morality and extrapolate it, you should end up doubting the supreme authority government has.

            But this isn’t even the central argument. This argument was made mainly in the comments and it was only made to make it clear to people that they wouldn’t have liked lot of what SL government is said to have done if it was done by anything or anyone other than the government. The central argument was, even if government does have such special authority, even if it is independent and sovereign by virtue of having control over land that is independent and sovereign, that fact alone doesn’t give them a free pass to violate much more fundamental rights of the people who are living in that land, if you extrapolate common sense morality and apply it to government activities.

            Secondly, assuming that human rights violations indeed happened, restorative justice is not an option in Sri Lanka’s case because one of the necessary factors for it, namely the consent of the Tamils, is missing. Restorative justice is not the default common sense view, and therefore has to have some conditions met to be applied, and consent of the Tamils is one of them.

            ***
            No. I asked South Africans whether restorative justice is viable if I raped and killed your wife. They say yes. Since you don’t think punitive justice is the default common sense view of justice, and since you told me to ask the South Africans when I asked you whether I get restorative justice if I raped and killed your wife, I might as well behave assuming that I get restorative justice.

          • David Blacker

            “The argument is when government has special authority (kind of authority that no one else has) that needs to be doubted because if you take common sense morality and extrapolate it, you should end up doubting the supreme authority government has.”

            Oh dear. I thought there’d be limits even to farce, but it seems there isn’t. It is you that is labeling governmental authority as “special”, “supreme”, etc. It isn’t. It is simply governmental authority. If a government had no authority, how would it govern? You seem to be seeing the government as equal to any individual or private body, and that it should have no greater “special” authority. The reality is that there is nothing “special” about governmental authority. It is an authority we the citizens have vested in the government to conduct certain things on our behalf, be it building the road systems, gathering taxes to pay for those roads, creating laws to govern the land, or defending the land from its enemies. It is practicality, not morality, since it is impractical for individuals to do any of the above.

            “This argument was made mainly in the comments and it was only made to make it clear to people that they wouldn’t have liked lot of what SL government is said to have done if it was done by anything or anyone other than the government.”

            Nevertheless, this secondary argument too is faulty, since the primary reason people would oppose an individual doing what the government has done is because the individual has no authority to do it, and therefore no legitimacy. The legitimacy of government action lies in the authority the population has vested it with. If you were to decide to create a law tomorrow, people would simply ignore you or laugh at you, because you don’t have the authority to do so. If you then went ahead and carried out this self-created law, people would oppose it because you have no authority to do so.

            “The central argument was, even if government does have such special authority, even if it is independent and sovereign by virtue of having control over land that is independent and sovereign, that fact alone doesn’t give them a free pass to violate much more fundamental rights of the people who are living in that land, if you extrapolate common sense morality and apply it to government activities.”

            Has anyone suggested that governments have a free pass to violate fundamental rights? If that is what you’re arguing, I think you are tilting at windmills, Don. But if you claim that the right to life supersedes all others, a government can argue that the violating of some rights was in the greater good, and prevented the violation of even more rights (self defense, etc).

            “Secondly, assuming that human rights violations indeed happened, restorative justice is not an option in Sri Lanka’s case because one of the necessary factors for it, namely the consent of the Tamils, is missing.”

            But the assumption cannot be made, because there is no evidence of it. If no evidence is forthcoming, eventually the Tamils will have to opt for restorative justice, or none at all. The need for both sides to agree to the process has nothing to do with the assumption of guilt, because restorative justice is about truth and reconciliation, and the desire for both, rather than a desire for punishment. Right now, your claim that the Tamils want punitive justice (if it is true) is based on the assumption of guilt; because without it, there can be no reason for punitive justice. Are you sure that in ten years, faced with no evidence of crimes, and no sign of any being uncovered, the Tamils will still be resistant to restorative justice (if indeed they are today, as you claim)?

            “I might as well behave assuming that I get restorative justice.”

            If your behaviour is governed solely by what you can get away with, you must have a very loose grasp of morality (amongst other things).

  • Sharanga Ratnayake

    You’ve clearly not understood the narrow scope of the article. This article doesn’t present any evidence whatsoever to suggest that war crime allegations are credible and argue that they are credible. It just assumes that the allegations are credible enough to warrant an investigation, and take into account that they are made by many people and organizations all over the world (UN, Amnesty, Chinese government etc.), and build from there. The argument was that the fact a country is independent and sovereign alone doesn’t immunize it from international scrutiny.

    The article argues that a second factor should be present. If the alleged crimes never happened, then a good course of actions would be to deny the allegation. In Sri Lanka’s case I don’t think they can convincingly do this. But I present no arguments for it or against it either way. It could be that it is perfectly possible. My focus was on the other course of action, which was to assume that some crimes happened, investigate, and ensure that justice is done. I don’t think the kind of restorative justice Nonis is talking about is going to cut it, simply because it is absolutely necessary that Tamils agree to it if it is to have any legitimacy.

    • Nick Hart

      If you accept (and you may not) that the Tamil diaspora and it’s supporters have a motive to destabilize and undermine the government in pursuit of their separatist agenda, that in itself disqualifies them from exerting any influence on restorative-justice legitimacy issues.

      It is also possible — likely — that vested interests on both sides would attempt to hijack and distort any investigation based on punitive justice because of the opportunity it would represent for political and ideological gain, particularly in determining what the punishment should be.

      There is also the issue of defining what represents ‘war crimes’ as opposed to the kind of ‘collateral damage’ that might be claimed to have been inevitable and unavoidable in the circumstances, and which happens in any similar conflict, however regrettable that might be.

      For example, the Tamils may claim that the government deliberately targeted civilians in genocidal attacks that had nothing to do with the actual conflict. For its part, the government might claim that the Tamil Tigers deliberately used civilians as ‘human shields’ in order to gain a military advantage. Evidence would be required to support either claim, and where would that come from, and how reliable would it be?

      Meanwhile, the concept if restorative justice might be unattractive to the Tamils because it would require acceptance of the fact that in a representative democracy, the minority cannot use force of arms to impose its will on the majority.

      It might also be appropriate that any involvement by the ‘international community’ should first be restricted to establishing precise punitive/restorative terms of reference.

  • Sharanga Ratnayake

    The academia apparently hasn’t understood where the government’s rather special political authority comes from. Most leftists begin their arguments having granted that government’s special authority is legitimate. That is always problematic.

    The truth is if it was anyone or anything other than the government that was accused of killing 40,000 civilians, people including you would be really really concerned about it. Somehow government gets a free pass.,

    • Nick Hart

      The political authority of a democratically elected government is not ‘special'; it is intrinsically legitimate.

      Meanwhile, in the interests of the majority and for the benefit of the nation as a whole, the government — finally — acted to end a vicious insurgency that it did not start and was forced to fight on the terrorists’ own brutal terms. As far as I know, it did not deliberately target 40,000 (if that is indeed the true) civilians out of genocidal spite.

      • Sharanga Ratnayake

        As I’ve argued in another comment, this idea that majority will is inherently legitimate is ridiculous.

        Secondly, when the government order you to pay money (tax) to it, threaten to punish you if you didn’t, physically drag you into a jail if you still didn’t pay, and when you consider the fact that no other entity can do this, I’d say the government has some pretty special authority.

        • David Blacker

          But haven’t you argued elsewhere in this thread that since the majority view of justice is that of a punitive instrument, it makes punitive justice the default option? Isn’t that too legitimization via majority will?

          • Sharanga Ratnayake

            Nope. I said punitive justice is the default common sense view. This is basically me asking you “if I kill rape and kill your wife, would you not want me punished.” I am making a proposal to you, the reader, that punitive justice is the kind of justice that we usually seek by default. There’s no appeal to the majority will.

          • David Blacker

            If I respond, “no,” would you accept that it is then not the default view? What is your basis for making the claim that it is the default view; is it not based on majority opinion?

        • Nick Hart

          Perhaps we — you — should preface your comments with a definition of terms. In this case, the will if the majority in a democratically elected parliament is by definition legitimate.

  • Nick Hart

    Your example is absurd. Students sitting an exam are benefiting from a system of state eduction that is predicated on acquiring knowledge and being examined on the extent to which they have benefited from that education. The obligation to not cheat is fundamental to their right to benefit, and overrides specific individual attempts to subvert the system.

    Meanwhile, democracy is what it is. Your view seems to reflect a similarly often mistaken understanding of the nature of justice. It has nothing to do with ‘fairness’, which is a moral abstraction based on a majority perception. Justice is nothing more nor less than the application of the law under a particular jurisdiction, whether it be Roman-Dutch, sharia, or whatever.

    In a democracy, law is (in theory, at least) enfranchised by the process of majority rule. If a sovereign democratic state has the right to enact its own laws, it has the concomitant obligation to ensure that those laws are applied equally to every citizen.

    Finally, democracy precisely is the authority of the majority over the minority. In ‘civilized’ societies, that authority is tempered by an understanding that ideological and political extremism is counter-productive and leads to civil unrest, but that does not alter the fact that democracy is, by definition, majority rule.

    • Sharanga Ratnayake

      That example isn’t absurd. But since you try to escape from what it implies, I’ll take another example. Suppose you and I and eight other guys go to a bar. We all order one beer each. Afterwards, you propose that I should pay the bill for all. I object. So we discuss, as good democrats should do. We discuss the pros and cons. You come up with the pros and I with the cons. At the end of the discussion the vote is 9 to 1 against me. Now should I pay for you all?

      Your view of justice is a ridiculous one, and frankly that is not the view most academics hold nowadays. An action isn’t just simply because it obeys the law. Only religious people who think that law comes from god think that, and you. According to this view, lashing a woman for getting raped is just, because the law says so. The rest of us think that justice is a concept of moral rightness, not legal rightness.

      Your theory of justice is absurd. If justice is nothing more or less than the application of the law under a particular jurisdiction, then since it’s the majority that defines the law, pretty much whatever the majority does is just. So if the ten of us beer buddies find a new island, setup law, and nine of you decide to kill me and and eat my flesh for dinner, and decide that it’s law through a democratic process, it’s just. I’ve read different conceptions of justice. Rawls conceives it as fairness, Nozick as non-coercion, the utilitarians as utility maximization. By far, yours is the most absurd one of them all.

      • Nick Hart

        These will be my last words on the subject. If you were to find yourself in court on a serious charge, what would you rather have: a jury that decided amongst themselves on what constituted the law, and whether you were guilty or innocent depending on their personal prejudice regarding what justice ‘should’ be; or a judge who clearly and unambiguously directed them on the letter of the law under which you had been charged, and impressed upon them that they must consider only the letter of that law and the evidence presented in court, as required by the law?

        The Central Criminal Court in London, popularly known as the Old Bailey, has a guilded statue on its dome of a woman holding a sword in one hand and a set of scales in the other. Most people would say they represent the ‘scales of justice’. They do not. They represent the weighing of the evidence for and against the accused as presented in court, and on which, according to the law, the defendant will be convicted or acquitted.

        If you know any qualified legal professionals you might want to run this discussion past them. You might the care to let me know what they say, but I suspect you won’t.

        • Sharanga Ratnayake

          If you know any qualified legal professionals you might want to run this discussion past them. You might the care to let me know what they say, but I suspect you won’t.

          Why on earth should I ask a legal professional about this? The article wasn’t discussing about justice as a legal concept. It was about justice as a moral concept. What we need is a professional philosopher who specializes in ethics, not a lawyer.
          ****
          If this is your last word on this, shouldn’t you have at least addressed the beer problem? Anyway, what I’d prefer if I find myself in court on a serious charge is whatever the method that would benefit me the most. I won’t really be looking for justice. Nevertheless, let’s imagine I want justice. I’d say, if I’m looking for justice, I might have not even have a good choice. Suppose that I’m a black kid living in the American south a few decades ago. The majority of the country are whites, and the majority of them are racists. The law itself therefore is made by racists. So interracial marriage is prohibited by law. Does it make sense for me to choose the judge if I’m looking for justice? Don’t think so. Does it make sense to choose the jury? Probably, if they are less racist than the majority of the country who made the law. But usually they too will have to follow the law. So in this case, the law is unjust (which can never happen according to you unless they were passed undemocratically).

          As for weighing evidence for and against (even though this is pretty much completely unrelated to what we’ve been discussing), it doesn’t make the law any more just as long as the law itself is not just. The law might be that all Jews are sinners and should be killed in gas chambers. You can weigh evidence for and against in determining whether someone counts as a Jew or not. Doesn’t make it any more just to kill person simply because he was born Jew.

    • Lord Shiva

      What you say is right why the Rajapakse rgeime is denying International media Journalists, diplomats, lawmakers, NGOs, human rights groups to the Tamils areas?
      Why denial of an independent international credible investigation if what the regime has done is perfectly right as per the international law?

      • David Blacker

        Firstly they are not denying the above mentioned to the “Tamil areas”, more properly known as the Northern and Eastern Provinces of SL. Secondly, no one is obliged to be investigated just because someone wants to accuse them. There has to be sufficient cause. When a policeman goes to a judge to obtain a warrant to arrest someone, tap their phone, or otherwise intrude into their lives, he must show sufficient reason to believe that the person is possibly the perpetrator of a crime.

  • Nick Hart

    This is a comment in the UK’s Guardian newspaper on a piece by Gerry Adams on the horrors if the Northern Ireland conflict. Please read it, particularly the final paragraph, and pause for reflection.

    “One of the most harrowing moments in the whole history of the harrowing of the heart in Northern Ireland came when a minibus full of workers being driven home one January evening in 1976 was held up by armed and masked men and the occupants of the van ordered at gunpoint to line up at the side of the road. Then one of the masked executioners said to them, “Any Catholics among you, step out here”.

    “As it happened, this particular group, with one exception, were all Protestants, so the presumption must have been that the masked men were Protestant paramilitaries about to carry out a tit-for-tat sectarian killing of the Catholic as the odd man out, the one who would have been presumed to be in sympathy with the IRA and all its actions. It was a terrible moment for him, caught between dread and witness, but he did make a motion to step forward.

    “Then, the story goes, in that split second of decision, and in the relative cover of the winter evening darkness, he felt the hand of the Protestant worker next to him take his hand and squeeze it in a signal that said no, don’t move, we’ll not betray you, nobody need know what faith or party you belong to. All in vain, however, for the man stepped out of the line; but instead of finding a gun at his temple, he was thrown backward and away as the gunmen opened fire on those remaining in the line, for these were not Protestant terrorists, but members, presumably, of the Provisional IRA.

    “It is difficult at times to repress the thought that history is about as instructive as an abattoir; that Tacitus was right and that peace is merely the desolation left behind after the decisive operations of merciless power … [But] the birth of the future we desire is surely in the contraction which that terrified Catholic felt on the roadside when another hand gripped his hand, not in the gunfire that followed, so absolute and so desolate … ”

    [Seamus Heaney, Nobel Lecture, December 7 1995]

  • Burning_Issue

    I hear you points about the choices when facing an organisations like LTTE. The war was fought and won. However, you must accept that there are numerous question marks in terms of how it ended. What happened the the surrendered with white flag on the advise of the deputy UN Secretary, the no fire zones and pinpoint shelling based on the location given by the UN, raping and mutilation of women but not restricted to. Such gruesome acts weren’t part of the choses were they?

    I also take issues with your “an undemocratic minority” comment; you have no idea as to how the Tamils became so called “undemocratic”. It is a cheap comment in the context of what the Tamils have gone through. You can call what you like about the LTTE and VP; I have no problems with that. If you know what Democracy is, please teach the Sri Lankan polity about it; they do not seem to grasp it even after 30 year war!

    • Nick Hart

      A parliamentary democracy, as in the case of Sri Lanka, is a system of government in which all eligible citizens have a right to participate by electing someone to represent their interests. The resulting parliament then has a mandate to govern, and is by definition a system of majority rule (see my previous posts).

      If I may repeat what I said earlier: ‘Examples are the US and UK, with the often profound political and ideological differences represented by Democrat v. Republican and Labour v. Conservative. In both cases, the minority broadly accept the obligation to accede to ‘discriminatory’ policies, insofar as they may discriminate in favour of the will of the majority, in order to benefit from the concomitant rights and privileges of a functioning democratic state.’

      Winston Churchill, Britain’s WW2 prime minister, once described democracy as ‘the worst form of government except for any alternative,’ in part because of its propensity to become corrupted by unscrupulous and self-serving spivs and shysters who are able to persuade the often stupid, uneducated, venal and credulous citizenry to vote for them.

      If you have a better alternative I would be interested to hear it.

      • Burning_Issue

        Thank you for your reply.

        Democracy is the best governing system out there where citizenries within mature
        democratic countries in particular accept and adjust their ways of lives. I am
        not surprised what Winston Churchill said about Democracy; he was an out and
        out imperialist who had no time for dissent from certain sections of the
        British or colonial societies! Moreover he belongs to yester years and modern
        societies will eschew his views with utter belligerence.

        Let me quote one of Sri Lanka’s fine intellectual and a gentleman called Dr N.M
        Perera; he said this during the Sinhala only debate in Ceylon Parliament in
        1955:

        “If democracy is to be treated as an arithmetical concept
        that whatever the majority decides must be accepted that if
        the majority decides that the majority religion must prevail
        it must be accepted merely because they have got superiority in members, that is not democracy. Where you have different religions, the sovereignty of the
        majority is automatically checked by those inalienable rights
        that the minorities have which cannot be overridden by the
        mere whim and fancy of a majority. The test of a
        democratic decision is the morality of the law. It is not
        merely a counting of heads but whether in point of fact
        the minorities are given full consideration of their points of
        view.

        Democracy means an adjustment of different points
        of view, it means giving full weight to the rights
        of minority communities. That is what democracy means, it is
        not merely a counting of heads.’ (613)”

        As you can see, Dr Perrera had much better understanding and appreciation for the
        concept of democracy. The bottom line is Democracy does not mean majority rule
        far from it. However, in a country like Sri Lanka, the democracy is being used
        as cover for a form of majoritism if you like. There is no appetite among the
        Sri Lankan ruling class to educate the public about their responsibility
        towards the minorities. They rather expediently perpetuate their ignorance to
        gain power. The Majority of the Sri Lankans believe that democracy means a
        majority rule confirming your fundamental fallacy!

        There is a fundamental difference between the US/UK and Sri Lanka that is Sri Lanka has
        two languages convoluted in the dispute. Where as the UK for example primarily
        has the dominant English language. However, Britain had recognized the
        importance of power devolution to Wales and Scotland. It is recognition of the
        minority rights and thus advancing the democracy by empowering the maginalised
        sections.

        In India, one may say a fledgling democracy, all minority grievances are entrusted to panels of retired judges in order for them to examine and suggest ways of rectification. The
        Indian government gives full weight to the recommendations of such a panel. In
        my view, this is the true form of Democracy where multi faiths and multi languages
        exist in a country. Sri Lanka does not need to look any further than India!

        • Nick Hart

          The problem with ‘democracy’, as a word and as a concept, is that it tempts people to look beyond its actual meaning and to personalize it as a moral aspiration. I agree with much of what you say, but the fact is that parliamentary democracy as a means of government carries specific legal, as opposed to moral, rights and obligations that are codified as laws and electoral procedures.

          In short, every eligible citizen has the right to vote for his representative, and the one with the most votes — the majority — is elected. He or she is then empowered to vote in parliament on any issue that requires a majority mandate: laws, for example, and any government business as required by the constitution.

          It is human nature, I guess, to try to mold any system of government into one that better accedes to your personal ambitions and aspirations, but isn’t that just another form of authoritarianism?

          In one thing you are entirely wrong: the bottom line is that democracy, by definition, DOES mean majority rule. The alternative would be minority rule, and that, by definition, is not democracy.

          • Burning_Issue

            “The problem with ‘democracy’, as a word and as a concept, is that it tempts people to look beyond its actual meaning and to personalize it as a moral aspiration.”

            Exactly that, but you have got it the wrong way round! A democracy in a country needs to be progressive and be ready to deal with any fresh challenges as societies’ needs change and changes in demography or dimension of peoples as a result of migration etc. It can
            never stand still. The UK is a prime example in terms of how they have adapted
            in respect of many challenges. If one were to deem that democracy is purely a
            number game, it is fundamentally flawed.

            As in the case of Sri Lanka! Sri Lanka in 1948 started with a big future equipped with a constitution giving safeguards to the minorities. But she miserably failed to develop her
            democratic institutions empowering the people; this failure had resulted in two
            internal insurrections resulting in countless loss of lives.

            Your conclusion as to the democracy is about a majority rule is too simplistic and naive! If you were to take it literally, a majority community in a country holds sway, but the governing structure should be designed to counter this along with effective statutes.

            Recently, in Bangladesh, there is a call from the Islamic factions to make the country as an Islamic state. We all know that the Bangladesh is preponderantly populated with Islamic people; yet, “Prime Minister Sheikh Hasina has vowed to maintain secularism as Bangladesh’s state policy, amid countrywide celebrations Sunday to mark the Bengali New Year, seen by right-wing Islamists as “anti-Islamic” practice.”

            http://www.indianexpress.com/news/bangladesh-pm-vows-to-maintain-secularism/1102530/

            So why does the Prime Minister of Bangladesh has vowed to maintain Secularism? This is where morality and politics intermix. She could easily go along with the majority community but she has struck a balance under a democratic institution. The concept of Morality does underpin the legal framework of a nation. It may stems from theology or combination of theology and principles of Secularism. Take the example of Gay rights in the western
            societies; even as early the 60s the Gay activities were deemed as illegal confirming to the religious sentiments. Today it is not the case; recognizing the rights of the gay people the countries have adapted to accommodate everybody as equal in the eyes of the law. Here the moral argument does not stems from the theology but from the fairness and the inalienable right of an individual or a group. This Dr NM Perera had eloquently outlined in his speech.

            I have no time to whatsoever to waste with Off the Cuff…

          • Off the Cuff

            Dear Burning Issue,

            You state “Recently, in Bangladesh, there is a call from the Islamic factions to make the country as an Islamic state. We all know that the Bangladesh is preponderantly populated with Islamic people; yet, “Prime Minister Sheikh Hasina has vowed to maintain secularism as Bangladesh’s state policy, amid countrywide celebrations Sunday to mark the Bengali New Year, seen by right-wing Islamists as “anti-Islamic” practice.” ”

            Ms Sheikh Hasina holds power by the will of the people. That means by the will of the majority.

            Keeping Bangladesh Secular is not Ms Sheikh Hasina’s doing, it is the Majority will of the people of Bangladesh. It has nothing to do with State Institutions or State Policy. The inability to understand this is unfortunate.

            It is to the credit of the Majority of the Muslim people of B’desh that she remains secular. By not recognising that you are belittling the majority of B’desh. If that majority decides some day to make B’desh a Muslim Country nothing and no one can stop that as long as democracy remains the system of govt. Nick Hart is quite right, Democracy is the will of the Majority how which way you try to twist it.

            You state “Sri Lanka in 1948 started with a big future equipped with a constitution giving safeguards to the minorities. But she miserably failed to develop her democratic institutions empowering the people;….. ”

            Sri Lanka did not start in 1948 and minorities were accommodated within Sinhala polity long before the British arrived even to the extent of offering the Throne to them. She has a long history extending several Millennia in to the past. Ignoring that is expediency.

            Throughout that History the Kingdoms of Lanka were Non Secular. Was the Kingdom of Jaffna Secular? Was the Kandyan Kingdom Secular? Was any other Kingdoms Secular? If you answer truthfully Non of them were secular. When the Kandyan Kingdom of the Sinhalese was handed over to the British, they EXPRESSLY undertook to maintain that Non Secular State. Dutch records show that the land South of Elephant Pass was the territory of that Kingdom (http://www.atlasofmutualheritage.nl/en/location/?id=813)

            I would like Lanka to be secular but that’s just my wish. You want Lanka to be secular and that’s just your wish. Unfortunately that’s not the wish of the Majority. The ONLY way that Sri Lanka can be made secular is by convincing the majority. Being antagonistic and arrogantly disparaging that majority is not the way to go.

            You state “….this failure had resulted in two internal insurrections resulting in countless loss of lives.”

            There were more than two insurrections (even after 1948).
            One of the most damaging and most horrendous happened in 1817/1818.

            It took place in what is now Uva, which was a then a province of the Kingdom of Kandy, against the British colonial government under Governor Robert Brownrigg, which had been controlling the formerly independent Udarata, (Up-Country in Sinhalese). Records state that the Uva Rebellion was the first struggle for gaining Independence from the British. (wiki)

            After that insurrection was over the British massacred the male population of Uva above the age of 18 years

            They killed all cattle and other animals, burnt homes, property and even the salt in their possession during the repression. Paddy fields in the area of Wellassa were all destroyed. The irrigation systems of the duchies of Uva and Wellassa, hitherto the rice-bowl of Sri Lanka were systematically destroyed. The British confiscated the properties of the people involved in the uprising (wiki)

            You say “A democracy in a country needs to be progressive and be ready to deal with any fresh challenges as societies’ needs change and changes in demography or dimension of peoples as a result of migration etc.”

            That’s a strange observation given your views about Land allocation within Lanka’s developed river basins!

            You say “Take the example of Gay rights in the western societies; even as early the 60s the Gay activities were deemed as illegal confirming to the religious sentiments. Today it is not the case; recognizing the rights of the gay people the countries have adapted to accommodate everybody as equal in the eyes of the law.”

            That is Naive though you accuse Nick Hart of Naivete.

            In a Democracy Laws are not Decrees, it has to be passed by a majority vote in Parliament. The MP’s are responsible to the people and their voting decisions would be reviewed by the people when they face elections. The significant numbers of Gays within societies and their voting power is what enables Gay Rights. A Prime example of how the VOTE influences decision making is the pampering of Tamil separatism in Britain, where even the public display of a Terrorist Flag is tolerated because action against that flag will disturb a massive vote bank of Tamil sentiment. Canada and countries where the numbers are significant acts similarly.

            You say “Here the moral argument does not stems from the theology but from the fairness and the inalienable right of an individual or a group”

            Drug addicts can get organised and demand that they be given the right to use drugs. Abortionists could do the same. Nudists can do the same and we can have copulation in public places because it is their right.

            Leaving aside the Gays’ sexual bent, do they not as individuals enjoy the same rights as those others who are not Gay? Is that not true even in Lanka? What are these Gay Rights can you describe them?

            Of course it is their right to experiment with their reproductive organs for things other than reproduction which is inalienable in private. Surprising to see you viewing acceptance of sexual aberration by a society as an emancipation though!

            You say “…..This Dr NM Perera had eloquently outlined in his speech.”

            The Buddha said and practised that several millennia before Dr NM.
            He went beyond that and treated and taught that all humans are equal from birth and could not be segregated by an accident of Birth. That is the heritage of the Lankan majority which you fail to take advantage of and instead take an antagonistic route alienating them.

            You say “I have no time to whatsoever to waste with Off the Cuff”

            That’s your choice but you are not my target readership. I just give you a chance to redeem your argument by addressing my comments to you.

            Anyway did your inability over several years to distort the Trinco Buddha Statue issue have anything to do with it?

            But no worries, I will make time for you in order to contest the aberrations in argument whenever that impinges on Sri Lanka.

        • Off the Cuff

          Dear Burning Issue,

          Unfortunately Dr N. M. Perera’s words “…that if the majority decides that the majority religion must prevail it must be accepted merely because they have got superiority in members, that is not democracy.” is observed in the breach even by the country that introduced parliamentary democracy to her colonies. In fact the Christian Church of England had a very big role in the governance of British colonies and that of the UK itself (which it still has).

          In Sri Lanka the Kandyan Kingdom of the Sinhalese was not secular to start with and that means the Mainland South of Elephant Pass! Hence just because a minority decides that it should be made secular that may not come to pass in the same way it has not happened anywhere else in the world! You need to build a consensus for that change to happen, attacking won’t do it.

          Though the Constitution of Lanka states that Buddhism shall be given the foremost place and protected it does so while ensuring the freedom of other religions. It also ensures that no citizen is discriminated on grounds of religion, ethnicity and cast.

          I have also responded to you at this link http://groundviews.org/2013/11/18/sovereignty-vs-the-right-to-life/#comment-1136322284

      • wallflower

        If you are on Facebook, do check out Fine Tuning Democracy and request for any clarifications that you need.

  • Guest

    On the merits or otherwise of sovereignty and majority-rule democracy, this might interest you, in part because it upholds at least part of your moral/legal argument:

    http://www.nationalreview.com/article/364659/knockouts-high-and-low-mark-steyn

  • Off the Cuff

    Dear Sharanga,

    You state “Since the right to life is the most fundamental and important right of all, there’s no other right that could trump it except the right to life itself.

    Expanding on the above, you make the following dubious argument.

    “It is in this light that allegations against Sri Lanka on human rights have to be viewed. As long as an actual crime where forty thousand civilians, who did no bear arms, and therefore posed no mortal threat to the lives of army personnel, took place, the state cannot absolve itself, or rid itself from allegations simply by appealing to its independence or sovereignty”

    You start with allegations and morph in the very next sentence to an “actual” crime without presenting any proof! There is video evidence on the Internet of LTTE Terrorists fighting in Civilian clothes. Hence stating that there was no mortal threat is disingenuous.

    The number 40,000 is plucked from thin air.

    But the most interesting part of your arguments I believe is your statement that “…..posed no mortal threat to the lives of army personnel”

    The forces of any country are legally empowered to bear arms. Safeguarding a countries citizenry is one of the many responsibilities that falls on their shoulders. The Forces fought to safeguard the Right to life of 20 million as there was a mortal threat to that 20 million from the Terrorists that were hiding behind 300,000+ civilians used as a Human Shield. Whether there was a mortal threat to the soldiers or not was immaterial though there was (soldiers did die and get maimed which confirms that the mortal threat was real).

    About 300,000 within that Human Shield sought safety with the forces and amongst them were about 20,000 Terrorists who did bear arms before they deserted the Terrorist LTTE. Some of them escaped before screening and some of them were caught during screening All of these terrorists were dressed in Civilian Clothes as non of them crossed over in Full LTTE Battle Dress complete with assault rifles!

    This last fact alone trashes your contention that those who were killed, what ever the numbers, were Purely unarmed civilians! Of course civilians were killed and of course Terrorists were killed. The fact is you don’t know one way or the other the numbers of each.

    The right to life of the Sri Lankan Civilian population who did not bear arms but depended on the forces to protect their Right to Life supersedes all other rights.

    The war with the terrorist LTTE was not the first of it’s kind the world has seen though it was the first time a war against terrorists was won. The IPKF fought a war in Lanka and they raped, pillaged, tortured and killed the Tamils in the North. The US is guilty of HR Violations and continue to violate with impunity. The British are no saints either. How they violated this Right to Life when a few terrorist bombs went off in London Transport is just a small example amongst many internal and external violations that can be laid at their doorstep. Australia, Canada and many other HR drum beaters have also been accused of violating this Right to Life.

    I don’t see anything wrong in an International investigation into any purported HR violation provided it is the International Norm. Hence those who call for one should prove it is the International Norm and not a selective application of the Law, which of course prostitutes Justice.

    —————-

    I would agree with Nick Hart

    —————-

    Burning Issue and Lord Shiva,

    You wrote “I also take issues with your “an undemocratic minority” comment; you have no idea as to how the Tamils became so called “undemocratic”. It is a cheap comment in the context of what the Tamils have gone through”

    What has the Tamils gone through?

    25% of them had a right to education, own property, move about freely, Travel in Public transport, drink water from segregated clean public wells reserved for them, practice their religion with total freedom and live it up at the expense of the other 75% who had non of the above and were kept servile and ignorant and treated as slaves. Was the Govt of SL that enacted Laws to emancipate that 75% responsible for the subjugation of the Northern Tamil majority?
    Lord Shiva what do you call that? Apartheid? Slavery or what?

    The Tamil polity did not have a voice it was robbed by a Tamil ruling class. The word “Tamil” used by the “educated” is not inclusive of the Tamil ethnicity. It was deceptively used by them and represented the views of a 25% ruling class of Tamils who eyed a special status for themselves.

    Mr Thomas Johnpulle, a Tamil, writing in the Colombo Herald states
    “Contrary what some observers propagate, the ethnic problem didn’t start in 1956. The concept of Tamil Elam was inaugurated by Sir Ponnambalam Arunchalam as far back in 1923. In 1931 a highly disproportionate 50:50 representation was sought to represent people on an ethnic basis which was actually 70:30″.”

    Is that a Lesson in Democracy?

    Lord Shiva you say “but there are still many nations, leaders and the global meadi call it as “rebels”. Who is correct?”

    If tearing children from a mothers grasp and forcibly sending them to the war front to face trained soldiers and inevitable death is not terrorism you should explain why that is so to those Tamil mothers. The UN says there were 9000 odd child recruits rescued and that was only the tip of the iceberg. They further say over 200 children were forcibly taken each month during the last few months. Perhaps that is not terrorism because your children were safely out of reach.

    Is bombing public transport and places targeting unarmed men women and children acts of rebellion? Does the BBC call the London bombers Rebels?

    Lord Shiva, what are these Tamil areas?
    Is Wellawatte in Colombo a Tamil area just because there is a preponderance of Tamils within?
    The Dutch National archives carries a record that states, in the 1600s, the land South of Elephant Pass was the Sinhala Kandyan Kingdom. That was the time when the Dutch ruled the Jaffna peninsular.

    Sri Lanka is a land that belongs to her citizens whether they are Tamil, Sinhalese, Moor, Burgher, Malay, Indian Tamil etc. Understanding that is key to peace.

    • Dutugamunu

      Very well said , thank you very much .

    • Sharanga Ratnayake

      Off the cuff,

      Lot of the force in your comment depends on the statement that “The number 40,000 is plucked from thin air”, because if the Army indeed killed 40,000 civilians, you’re going to have a hard time justifying it. All the rest of your comment depends on 40,000 civilians actually not being killed. As I said in the article, this is one way forward. You can deny that such out right human rights violations happened. I don’t find this convincing. You yourself in your comment show that you have doubts. Nevertheless, this is one way forward.What is not a way forward is to argue that we are an independent and sovereign nation, and that fact alone should give us complete immunity from international scrutiny even if such outright human violations happened, won’t you agree?

      Secondly, assuming such human rights violations happened, restorative justice is not a viable option as long as Tamils don’t like it, don’t you agree?

      • Off the Cuff

        Dear Sharanga,

        You state “Lot of the force in your comment depends on the statement that “The number 40,000 is plucked from thin air”,….”

        You have avoided justifying the 40,000 in your response and have attempted to bury it amongst “IF”s.
        Your whole article is based on this fictitious 40,000 number that you could not justify then and have failed to justify now.

        Hence you have indeed plucked it from thin air.

        You say “….. because if the Army indeed killed 40,000 civilians,…”

        “IF” means speculation. And the above statement is an admission that you are speculating.
        The number 40,000 is nothing but Fiction.

        You say “.. you’re going to have a hard time justifying it.”

        We will get to that after you establish the 40,000 number as Fact.
        Till then keep your focus on establishing the 40,000 unarmed “civilian” deaths.

        Remember your own argument, “Since the right to life is the most fundamental and important right of all, there’s no other right that could trump it except the right to life itself” Still think I will have a hard time if you cannot establish that the LTTE (in your own words) “…..posed no mortal threat to the lives of army personnel” ? Please read my previous comment with more care.

        You say “You can deny that such out right human rights violations happened. I don’t find this convincing”

        You are still in the Realm of Fiction.
        I have no need to deny what you have not established.

        “You yourself in your comment show that you have doubts”

        I have absolutely no doubt that the purported 40,000 deaths of unarmed civilians is a lie.
        I have no doubts that civilians died. In which war were civilians spared?
        I have no doubts that the LTTE killed civilians.
        I have no doubts that the LTTE used civilians as a Human Shield.
        I have no doubts that the LTTE Terrorists fought in Civilian cloths.
        I have no doubts that the LTTE Terrorists died.
        I have no doubts that SL Soldiers died attempting to rescue civilians from a Human Shield.

        You say “What is not a way forward is to argue that we are an independent and sovereign nation, and that fact alone should give us complete immunity from international scrutiny even if such outright human violations happened, won’t you agree?”

        Please re read my previous comment. I did not make any argument about an “independent and sovereign nation”. I based my argument on your own statements about the right to life!

        Please focus on what I wrote not what you think I wrote.

        Here is what I wrote in my previous comment.

        I don’t see anything wrong in an International investigation into any purported HR violation provided it is the International Norm. Hence those who call for one should prove it is the International Norm and not a selective application of the Law, which of course prostitutes Justice.

        Wonder why you could not understand it!

        • Sharanga Ratnayake

          Off the Cuff,

          The 40,000 is not a number I pulled out from thin air. It is the number estimated by that UN panel which found that as many as 40,000 civilians may have been killed in the final months of the civil war, most as a result of indiscriminate shelling by the Sri Lankan military. If you think they pulled it out from thin air, that is a separate discussion.

          I agree that you did not make any argument about an independent and sovereign nation. I was merely restating one of the central points in the article. However, reading your second comment, and re-reading your first comment, I realized that I missed a rather dubious argument of yours. You say “hence those who call for one should prove it is the International Norm and not a selective application of the Law, which of course prostitutes Justice.”

          I agree that it is indeed unfair if laws are applied selectively, and as a matter of fact, laws are applied selectively, not just international law, but domestic laws as well. Powerful countries break international laws, just like powerful people like Mervyn Silva break domestic laws. Now my question is, is it your contention that therefore everyone should get a get-out-of-jail-free-card? Are you arguing that even if SL committed war crimes, they should not be held responsible as long as powerful countries like the USA are not held responsible?

          • Off the Cuff

            Dear Sharanga,

            You say “The 40,000 is not a number I pulled out from thin air. It is the number estimated by that UN panel which found that as many as 40,000 civilians may have been killed in the final months of the civil war, most as a result of indiscriminate shelling by the Sri Lankan military. If you think they pulled it out from thin air, that is a separate discussion”

            In your article that estimate has morphed towards an established fact “As long as an actual crime where forty thousand civilians, who did no bear arms, and therefore posed no mortal threat to the lives of army personnel, took place, the state cannot absolve itself, or rid itself from allegations simply by appealing to its independence or sovereignty”

            This fictitious figure was authored by Gordon Weiss soon after he was sacked from the UN in 2009. It was unsubstantiated then and its unsubstantiated now, hence pulled out of thin air. Even the author has avoided substantiating the figure and has disowned his so called “Reliable Sources”

            Mr Gordon Weiss posted a comment in GV on 22 April 2013 and I had the opportunity to ask him the following a few hours later. Mr Weiss has been unable to respond to date.

            In an ABC interview with Mr Campbell you put forward the Civilian death toll as 40,000 claiming the figure came from reliable sources INSIDE the NFZ. In your book the cage you claim that you don’t know how reliable your sources are. This is Double Speak to say the least. Today this rubbery death toll figure you originated then, has snowballed beyond belief to an unbelievable figure of 147,000.

            147,000 dead + 441,000 (a nominal 3 times that wounded) + 300,000 (some of them wounded and hence will be accounted for within the 441,000 wounded) rescued and in IDP camps, giving a minimum total population in the Vanni to 888,000 and that’s excluding those who went overseas by whatever means. All in all the Vanni population would have approached or exceeded 1,000,000. The ludicrousness of these claims are apparent when these absurdities are compared to Census figures.

            The UN has access to demographic data of its own, as Funding for UN aid programs is based on them. Hence the claim that you authored and which has now gone berserk, is nothing but Rumour, that by your own admission is Unreliable to say the least. Does this not indicate that your utterances are unreliable? More so as you have an interest in whipping up Tamil Sentiment to boost revenue from the book sales of your targeted audience, The Tamils nationalists.

            In the “Cage” you wrote

            “I have not dealt in close detail with the matter of figures of dead and wounded, how they are calculated and how reliable those sources might be. I make the point in the text that it is for others to get closer to that particular particle of truth.”

            Why the Double Speak Sir?
            Are you afraid to face facts?
            End extract

            Weiss starts the rumour in early 2010, Darusman improves on it in 2011 and you go a step further and makes it a fact in 2013!

            Where you got it is immaterial. The fact remains that it is a Lie picked out of thin air. No one, the author, Darusman or you have been able to substantiate it, period. Possession of stolen goods, even without knowledge that they were stolen, does not absolve you from responsibility. Don’t point to Darusman as a scape goat when you have the intelligence to weigh the evidence.

            You say “Now my question is, is it your contention that therefore everyone should get a get-out-of-jail-free-card?”

            I have outgrown Monopoly.

            You say “Are you arguing that even if SL committed war crimes, they should not be held responsible as long as powerful countries like the USA are not held responsible?”

            You are back in to the Realm of Fiction with that ever present “IF”

            What I say is Justice cannot be dispensed if impunity reigns supreme. That is true domestically or internationally (not withstanding your preoccupation with Mervin Silva).
            The UN should put her house in order and ensure Justice prevails over impunity.
            I am amazed at your sense of Justice which your article hid from view till now!

            I hope your interest will revert to the delivery of Justice.

    • Sharanga Ratnayake

      Off the cuff,

      Why do you keep on trying to engage me in a debate when I clearly said I won’t be debating here. Whether the UN Panel Report is credible or not is a different discussion and is clearly out of the scope of the article. So this is pretty much what is called trolling, and fanatical, because you’re clearly incapable of changing the topic.

      When allegations of human rights violations are leveled at you, one of the things you can do is deny that such human rights violations ever happened. In the article this is acknowledged, and clearly stated that this not the path that is questioned. The article focuses on the other path possible, which acknowledges that human rights violations took place but nevertheless makes sure that justice is done to the victims.

      Now if you don’t think human rights violations happened in an unjustifiably large scale, if you don’t agree with the UN Panel Report, you could just say so in a single sentence and say the rest of the article is irrelevant since these human rights violations never happened. You can substantiate your claim elsewhere instead of trying to engage me in a debate about that here where it doesn’t belong.

      ***

      What I say is Justice cannot be dispensed if impunity reigns supreme. That is true domestically or internationally (not withstanding your preoccupation with Mervin Silva). The UN should put her house in order and ensure Justice prevails over impunity.

      This is a ridiculous statement. If you don’t like Mervyn Silva anology, you can take Duminda Silva, or pretty much any government minister. The fact remains even if they are not punished for wrongdoing, that shouldn’t give everyone else a licence to do wrongdoing. This is true both domestically and internationally.

      You seem to think that justice is fairness. But no, these are two different concepts. If you are punished for breaking and entering into my house and you are punished for it when no one else has ever been punished for it, it is not fair to you. But is it just? Certainly. You broke and entered into my house.

      So what you seem to be saying, that SL should not be held accountable because no one else is held accountable, is not a valid argument.

      • Off the Cuff

        Dear Sharanga,

        You ask “Why do you keep on trying to engage me in a debate when I clearly said I won’t be debating here. Whether the UN Panel Report is credible or not is a different discussion and is clearly out of the scope of the article. ”

        Unfortunately that’s not how it works.
        You opened the door to inquiry by using the UN Panel’s report. Saying you will not go there and treating it as a God given fact is a ploy that will not work as it is part of your argument’s foundation. Remove the reference to the Darusman report and then try to build your argument which of course will be a failure.

        Gordon Weiss was the first person who manufactured the 40,000 civilian death toll (after he got sacked from the UN spokesperson’s job in 2009) which was picked up by Darusman and now by you. Weiss has already back tracked Re the “Credible Sources” that he claimed existed. Darusman does not disclose their “credible sources”. Perhaps that source was Weiss or Weiss’s sources.

        Here is an extract from the UN report (Darusman report) that you have fondly quoted in developing your argument.

        1. Using civilians as a human buffer

        237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)
        End Extract

        This is what the ICRC state

        It can be concluded that use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.
        End extract

        The LTTE was a military objective and the LTTE tried to prevent targeting that military objective by intentionally collocating civilians amongst themselves. Hence in Law that amounted to the use of a Human Shield which is a War Crime not withstanding the perverted interpretation given by the UN’s Expert Panel, the Darusman Panel.

        As you can see the Darusman UN Expert Panel’s report is full of “Credible Evidence” that it could not find.

        It ties itself in knots by losing sight of the ICRC interpretation and attempting to redefine it in order to exonerate the LTTE of a War Crime. They claim that in the eyes of the Law no Human Shield existed.

        Obviously someone has got to the Darusman Experts.

        On 11/4/2013 Ms Yasmin Sooka a member of the UN panel wrote an article on GroundViews where she repeated the 40,000 claim and upped the ante by quoting the 70,000 claim of a subsequent UN report (Petrie report) and thought it fit to give credence to a more staggering figure of 147,000 She says “The Catholic Bishop of Manner has suggested that more than 147,000 people remain unaccounted for”. Please read the comments section of her article wherein questions were asked from her. Her response was total silence. (Please read the Numbers game on GroundViews for more information)

        You claim the 40,000 civilian deaths is a fact.
        You claim that those 40,000 were unarmed.
        You claim that that 40,000 did not pose a mortal threat to the soldiers who rescued civilians from the Human Shield.

        I have demolished ALL those claims.
        Deaths occurred of Civilians and terrorists. Terrorists fought in Civilian Clothes. Hence there is no fool proof method of identifying civilians from terrorists using clothing. It is known that Children were forced conscripted by the Terrorists. The UN says during the final months forced conscription exceeded 200 children a month (they claim it was just the tip of an iceberg only 11% visible). Hence you cannot identify a terrorist using age as a criteria. We know that both female and male terrorists existed. Hence you cannot use sex to identify a terrorist.

        Please explain how you or anyone else can differentiate a terrorist from a civilian under the above circumstances.

        About 20,000 terrorists survived and crossed over to govt areas. 14,000 of them were identified during screening and others escaped the IDP camps before screening. Hence you cannot claim there was no mortal danger to the troops.

        A PRIMARY factor that you brought in to the argument was (in your own words) “Since the right to life is the most fundamental and important right of all, there’s no other right that could trump it except the right to life itself”

        Since the Army personnel were exposed to mortal danger from Gun wielding terrorists in Civilian Clothes, the right to life of the soldiers trumps that of the terrorists in Civilian clothes as per your argument.

        You say “This is a ridiculous statement. If you don’t like Mervyn Silva anology, you can take Duminda Silva, or pretty much any government minister. The fact remains even if they are not punished for wrongdoing, that shouldn’t give everyone else a licence to do wrongdoing. This is true both domestically and internationally”

        What is ridiculous is your world view of Justice. The reason you brought M Silva is to draw a Red Herring. It is the same reason that makes you bring D Silva or any other.

        You say “You seem to think that justice is fairness”

        You are confused.

        Justice is the application of relevant Law, without fear or favour. A basic principle of Justice is that Everyone is Equal in the Eyes of the Law. Justice is symbolised by a Blindfolded lady, holding an Even Scale in one hand and a Sword in the Other. I hope there is no need to explain anything further

        Bringing in M silva or D Silva or any SL political figure in power does not change that. Their perversion of Justice does not license you or any other to do likewise.

        You say “You seem to think that justice is fairness. But no, these are two different concepts. If you are punished for breaking and entering into my house and you are punished for it when no one else has ever been punished for it, it is not fair to you. But is it just? Certainly. You broke and entered into my house.”

        You bring very strange mind experiments to subvert arguments. If no one else was punished for breaking and entering then that society excepts breaking and entering as a norm. Hence that society will not have laws prohibiting breaking and entering because it is accepted behaviour just like eating and drinking. Hence those people in that imaginary society of yours will not see anything wrong in breaking and entering. Since you are also part of that society you will also view it as normal. Your confusion results from using irrelevant frames of reference.

        I have already stated what Justice is. Perhaps you live in America. Perhaps long exposure to official American arrogance has coloured your world view of Justice. Justice does not conform to the view that an American can do anything with impunity.

        • Sharanga Ratnayake

          Oh goodness…you really are a fanatic, aren’t you? To understand this think about syllogisms, which is a simple kind of logical arguments. Here, conclusion is inferred from two or more premises. If you take a categorical syllogism, one of them is the major premise, and the other is the minor premise. From these premises, a conclusion is drawn.

          There are two ways to challenge a conclusion drawn from such an argument. One, you can challenge the premises of the argument. Two, you can challenge the logical form of the argument. That is, you can argue that the conclusion doesn’t follow from the premises. It is this second type that the article is interested in. It acknowledges that the first path is available, but doesn’t focus on it. It focuses on the logical form of the argument.

          Now, the definition of a fanatic is someone who just can’t change the subject. I’ve said over and over, both in the article and in the comments that you can indeed challenge the premises, but this article doesn’t focus on the premises, but rather the logical form. So if you still want to keep on ranting about how false the premise is, be my guest.

          • yapa

            Sharanga’s theoretical knowledge/understanding about arguments is correct.

            There are two ways to challenge conclusion of an argument, as he correctly explains.
            1. Challenging the premise(s) of the argument.

            2. Challenging the logical form of the argument.

            We can extend his explanation a little bit further.

            There can be four different outcomes (alternatives) in such a process of challenging.

            (i). Premise is incorrect and logical form is correct, where the conclusion is invalid and untrue.

            (ii). Premise is correct and logical form is incorrect, where the conclusion is valid but the conclusion is untrue.

            (iii). Premise is incorrect and logical form is incorrect, where the conclusion is invalid and conclusion can be true or untrue but not logical.

            (iv). Premise is correct and logical form is correct, where the conclusion is valid and true.

            Now according to Sharanga’s statement,

            “There are two ways to challenge a conclusion drawn from such an
            argument. One, you can challenge the premises of the argument. Two, you
            can challenge the logical form of the argument. That is, you can argue
            that the conclusion doesn’t follow from the premises. It is this second
            type that the article is interested in. It acknowledges that the first
            path is available, but doesn’t focus on it. It focuses on the logical
            form of the argument.”

            he accepts that the premise of his argument is possibly incorrect, but lauds that his logical form of the argument.

            Therefore, his argument fall into the category of (i). above and hence his conclusion of his article is untrue, or possibly untrue.

            So, is it correct for me to conclude that Sharanga wanted to argue to arrive at an untrue conclusion?

          • Off the Cuff

            Dear Sharanga,

            It is the strategy of some to resort to name calling and pseudo indignation when they have been cornered in a debate. I did not expect you to descend to that level though.

            Your latest post has nothing to do with establishing what you wrote.

            The following para of my last post deals with your argument head on.

            Deaths occurred of Civilians and terrorists. Terrorists fought in Civilian Clothes. Hence there is no fool proof method of identifying civilians from terrorists using clothing. It is known that Children were forced conscripted by the Terrorists. The UN says during the final months forced conscription exceeded 200 children a month (they claim it was just the tip of an iceberg only 11% visible). Hence you cannot identify a terrorist using age as a criteria. We know that both female and male terrorists existed. Hence you cannot use sex to identify a terrorist.

            Subsequently I asked you to share your wisdom.

            Please explain how you or anyone else can differentiate a terrorist from a civilian under the above circumstances.

            Apparently you have no answer for that either and no wisdom to share.
            Now in the absence of a logical defence, where does your contentions stand?
            In the rubbish heap?

            The following paras used your own arguments to demolish your premise.

            About 20,000 terrorists survived and crossed over to govt areas. 14,000 of them were identified during screening and others escaped the IDP camps before screening. Hence you cannot claim there was no mortal danger to the troops.

            A PRIMARY factor that you brought in to the argument was (in your own words) “Since the right to life is the most fundamental and important right of all, there’s no other right that could trump it except the right to life itself”

            Since the Army personnel were exposed to mortal danger from Gun wielding terrorists in Civilian Clothes, the right to life of the soldiers trumps that of the terrorists in Civilian clothes as per your argument.

            You have no answer because you expected your arguments to be unassailable but that expectation was incorrect. Your own arguments have boomeranged on you.

            Then you came out with a convoluted idea of Justice but that too has been sent to its Just grave with the following observation.

            Justice is the application of relevant Law, without fear or favour. A basic principle of Justice is that Everyone is Equal in the Eyes of the Law. Justice is symbolised by a Blindfolded lady, holding an Even Scale in one hand and a Sword in the Other. I hope there is no need to explain anything further.

            If you can contest any of the above factually and logically you are welcome to try.

      • Sitrundi

        Dear Sharanga, you are discovering what many here in the community have known for some time. Off the cuff is post copious amounts of “words” but is in denial of the atrocities committed against the minorities by the majority. [Edited out – please attack the ideas violently, but go gentle on the individuals. Kindly read out submissions guidelines.]

        “What a sad era when it is easier to smash an atom than a prejudice.”
        ? Albert Einstein

        • Off the Cuff

          Dear Sitrundi,

          Sharanga and I have exchanged views long before you came on the scene.

          The current discussion is not about prejudices but about a dubious number of civilian deaths advanced first by Mr Gordon Weiss Who has now backtracked on his statements. Subsequently the UN’s Darusman and co picked it up. Einstein is a great man but quoting him inappropriately is not wise.

          If you have facts to establish that the dubious civilian death figure of 40,000, please read my posts and contest them else sit back and enjoy the discussion.

          The “words” I write have meanings and facts embedded within. If you find it overwhelming it is because I have a lot of facts to write about. I can easily afford to refrain from Ad Hominems but you don’t seem to be able to do that.

          Please do make a factual and compelling argument to establish your views. I will certainly enjoy reading it and so will the GV readership.

  • Sitrundi

    For the likes of you, the Tamils are less than Sinhalese, as long as they accept that and live -they will be safe, right?

    • Sitrundi

      my above comments were directed to off-the-cuff

    • Off the Cuff

      Dear Sitrundi,

      You have been making several comments in different threads which have no relevance to the discussions. You seem to be emboldened by the absence of a response to those ad hominems.

      Though your intent may not have been to state the obvious, in Sri Lanka, Tamils are less in number than the Sinhalese. But as individuals they have everything a Sinhalese has and I do not see any difference in them. Unless you are blind and cannot see, even the blood is of the same colour.

      We in Sri Lanka have a vibrant blood and Eye donation culture. Perhaps our religions play a major role in that. Since the majority population is Sinhalese and Buddhist the Blood and Eye banks have a preponderance of their blood and corneas. No Sinhalese I know stipulate that their blood or organs should only benefit the Sinhalese. No Buddhists that I know stipulate that their blood or organs should benefit only the Buddhists. No Tamils that I know stipulate that their blood or organs should only benefit the Tamils. How many Tamils do you know who refuse to accept Sinhalese or Buddhists blood or organs when the lives of their loved ones and of themselves are at threat or their sight is gone? I do not know of any.

      Does the Tamils or the Moors or the Burghers or the Malays or the Sinhalese check the Ethnicity or Religiosity of the blood or organs that they receive when in need? I of course do not and I doubt you would either. You see Sitrundi there is no difference between us as Human beings.

      I do not see why one Human should be superior or inferior to another.

      You seem to fear the truth as your attempts at preventing Dr N Ethirweerasingham and Dr D Nesaiah from responding to arguments indicate. Do you fear the Truth?

      Please meet the arguments presented without degrading yourself with ad hominems. Ad hominems sans an argument proves that such a writer is intellectually bankrupt.

  • yapa

    Check out this case to see the danger of decision making based on “interpreted versions” based on emotions rather than facts. Many wants the case in Sri Lanka to be investigated on emotions and agitations of interested parties. In the international arena this happened many times recently and now no one is responsible for the consequent catastrophe Iraq was destroyed and still being destroyed on the “interpreted version” of WMD. Gadafi,s country is in a disarray and anarchy. USA, UK and many allies wanted to invade Syria based on their “interpreted version” that the Government used Chemical weapons. But now a UN expert team has revealed that the Chemical weapons were used by the rebels supported by the USA and allies.

    http://www.upworthy.com/ever-hear-about-the-lady-that-spilled-coffee-on-herself-at-mcdonalds-then-sued-for-millions?c=ufb2

    In Sinhala there is a saying that “giya nuvana Athun lava wath addawanna baha”. We should not hope to hire elephants to rectify our follies committed based on “”fantasized”_ “cooked versions”” rather than on facts.

    A fiction could be more interesting than facts, still its a fiction. We should not get swayed away by the beauty of fictions.