Photo courtesy JDS
A Talk given at the Colombo Club, August 2014
Thank you for inviting me to speak to you today. I do so with trepidation since speaking to captains of industry is quite outside my zone of comfort. My brother Indrajit Coomaraswamy, with whom you are more familiar, once told me in the middle of a political argument- you must realize, in society there are different roles that everyone must play. He said he was a civil servant and his job is to gently persuade governments to do the right thing. He then added ‘you are a social activist- it is your role to speak truth to power”.
So in that spirit I thought I would talk to you today about the evolution of international human rights within the United Nations system with the aim of dispelling myths and confronting fears that abound in Sri Lanka. These myths and fears are propounded every day in our newspapers, on our political platforms and in our private conversations.
I will begin by first discussing some misconceptions with regard to the general idea of human rights that we have in Asia and then move onto describing the five phases of human rights evolution within the United Nations System.
ASIAN VALUES AND THE ASIAN WAY?
Human rights, rooted in the United Nations Charter, to which all the countries on earth are signatories, is the only universal language we really have to protect individuals and to fight for justice. Every Asian country in the United Nations voted for the Universal Declaration of Human Rights when it was adopted by the General Assembly.
Yet, some have argued that human rights are western concepts and not eastern and therefore not in keeping with our culture. If one studies human rights in detail as scholars such as Chandra Muzaffer in Malaysia and Abdullah An’aim in Sudan have done, one can immediately see that they are basically rooted in the concept of human dignity which is present in all the world’s religious and ethical traditions. In the past they were expressed in religious or ethical terms within religious texts, traditional laws and practices.
When we adopted modern legal systems and moved away from our religious laws, it was natural and inevitable that these humanistic ideas would become part of that process. We have adopted many modern western ideas- including the concept of the nation state that we are ready to die and kill for. We have embraced the concept of social equality about which we are so passionate and which is also an integral part of human rights. We are propelling ourselves forward into an era of unbridled capitalism-that too is modern and western in origin. Why are we then only suspicious of human rights?
It is also argued that Asians are more community oriented than individual rights oriented and therefore human rights fundamentally disrupts our way of life because it privileges the individual over community interest.
As great Indian human rights theorists like Upendra Baxi have pointed out, empowering communities is also very much within the human rights tradition- the work on the rights of indigenous peoples being an example. But where communities oppress individuals such as women, castes, or minorities then the human rights tradition stands with the individual- a position we all surely must take at the turn of the twenty first century where equality is enshrined in our Constitution.
For others in Sri Lanka- especially those in government and the private sector, human rights is said to be an inconvenience that interferes with development. Many, even in this room, may admire the ways of Lee Kwan Yew or Mahathir or what is called state led authoritarian development the Asian way. As you know the Nobel Laureate economist Amartya Sen strongly contests this glib top down description of Asia. He often reiterates that Indians at least have a very argumentative and heterodox political tradition. My friends in the human rights and women’s movement of Asia also balk at this heartless description of our continent. Hopefully so does President Rajapakse who was extremely active in the human rights movement in the late 1980s going to Geneva, fighting for justice both at home and abroad.
The belief that human rights hinder development is a convenient misconception that is often used as an excuse to centralize power in a few hands. Human Rights does require that a society provide a safety net for the poor in terms of food, housing and education, but human rights in the development field is not about preventing development projects. You can have your dams, your housing projects and your highways. Human Rights is not about stopping development- it is only about implementing proper, legal and transparent procedures.
For example human rights in the development field is about giving notice- well ahead of time -to the affected population.
It is about consultation, preparation and participation of the target population in the implementation of the project.
It is about transparent tender processes and risk assessments with regard to the environment and to the public.
It is about reasonable compensation for loss. The Southern Highway with ADB backing actually went through this process and, though delayed a little because of inevitable controversies, is now a win win situation. We do have the capacity to develop our country while respecting human rights.
Today, however we evict people, dig up roads, shut water and remove offices without adequate notice or explanation. We implement projects in a very opaque fashion without any call for tenders or risk assessments. We dismiss people or move people around without consultation, and we barely compensate for loss.
I remember my constitutional law professor shouting “Process, process, process- that is the essence of the rule of law and human rights.” Without it we are bound to have rampant corruption, abuse of power and plain thuggery. For all these reasons we must be very skeptical when someone speaks admiringly of an authoritarian, top down, so-called Asian model of development.
For lawyers, however, uninterested in history or philosophy the discussion of “eastern authoritarian” or “western liberal” is quite irrelevant to the issues at hand. For them it is purely a matter of State consent.
The Sri Lankan state has signed and ratified the UN Charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social Rights, the Convention Against Torture, the Geneva Conventions among others. We did so because we want to improve the quality of life of our people and to be part of the comity of nations.
We cannot suddenly say when it is inconvenient- “Actually we really did not mean it”. “Our culture does not recognize it” etc.…we have international obligations and we must abide by them. They are the natural byproduct of being part of the international community. We must be realistic and realize that we do not have the status of a super power even if we wish to flout human rights obligations with impunity.
THE FIRST HUMAN RIGHTS COMMISSION
Let me now move to the main thrust of this talk- the evolution of human rights at the international level, especially at the United Nations system. While national bills of rights were present since the eighteenth century, international human rights only came into existence at the end of World War II. After the absolute horror of the holocaust, especially the concentration camps and other evil forms of Nazi terror, there was a belief that “never again” should this be allowed to happen.
When the UN Charter was discussed, it was the representative from Panama, Ricardo Alfaro, a close fried of HG Wells, who brought forward this idea of international human rights. As a result a Commission on Human rights was created- a sub body of the Economic and Social Rights Council. The drafters of the UN Charter wanted it to be a low key, subordinate body since there was a lot of uncertainty. Eleanor Roosevelt was made the Chairperson of the first Human Rights Commission and its first task was to draft the Universal Declaration of Human Rights.
It was only in 2005- almost 60 years later- that the UN Human Rights Commission was elevated in status and became the Human Rights Council- the third pillar of the United Nations System with equal status to the Security Council and the Economic and Social Council. It is this new, elevated Human Rights Council, elected by the General Assembly, which is now entrusted with human rights issues concerning Sri Lanka and other countries.
PHASE ONE: ERA OF STANDARD SETTING
Human Rights in the UN system may be divided into five phases. The first phase was from 1947- 1966 and may be called the era of standard setting. The Human Rights Commission at that time spent its time drafting international conventions on human rights. The Commission worked hard- they produced The Genocide Convention, The International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights. Later they would go onto create the Convention on the Elimination of Racial Discrimination, and the Torture Convention.
This standard setting phase paralleled the period of decolonization and many of the provisions from these Conventions were directly incorporated into the national constitutions of the newly formed states. Many Europeans countries also amended their constitutions. If you go to our Sri Lankan Constitution and the Fundamental Rights Chapter you will notice that some of the provisions are exact words from the International Covenant on Civil and Political rights.
The important thing to notice about this first phase is that it dealt with developing standards, norms and themes. There was no mention of individual countries. There was no naming and shaming of governments and it was considered heresy to interfere in the internal affairs of countries. The concept of national sovereignty remained supreme.
Our government, our neighbor, India, along with China, Cuba, Iran and Russia would like the UN human rights system to remain in this phase without naming and shaming individual governments. They feel the Council should only deal with general thematic issues. They act as if the next four phases of international human rights have not happened- however, as we will see the system has moved on.
SECOND PHASE: PIERCING THE VEIL OF SOVEREIGNTY
The second phase of development with regard to international human rights may be called the era of piercing the veil of sovereignty and the beginning of “naming and shaming” governments. The issue that brought the belief that the international system must respond to unconscionable things happening within countries and that it must interfere in internal affairs of a country was the issue of Apartheid. It was Africa then that was initially determined to pierce the veil of sovereignty.
Resolution 1235 was passed in 1967 allowing the Human Rights Commission to “intervene” in situations of grave violations against human rights. A Working Group on Apartheid was also set up. From then on the Human Rights Commission has never looked back and continuously comments on the internal issues of countries.
The first real test for the UN system after Apartheid was the disappearances that were taking place in Latin American countries in the 1970s and 1980s. To avoid state liability, military dictatorships were sending personnel dressed in civvies and unmarked vans to kidnap and transport subjects to unknown destinations for torture and extra judicial killing. The State would then feign ignorance and say it must have been the act of private parties. No one of course was arrested. Thousands died during this process. This practice perfected by the Latin American military juntas is now all too familiar in other parts of the world as well.
In responding to this, the UN Human Rights Commission created the Working Group on Disappearances, and later a Special Rapporteur on Torture, a Special Rapporteur on Extra Judicial Killings and a Working Group on Arbitrary Detention. These mechanisms not only filed reports but also were given the power to visit countries and to name and shame governments.
These actions along with agitation by activists in Latin America and their supporters abroad led to a famous international legal principle articulated in the Velasquez case of the Inter American Court – not a European or a US Court-where primarily Latin American judges held that States have a positive, due diligence duty to prevent, prosecute and punish those who commit criminal acts against others. Allowing impunity for such crimes was itself now seen as a clear violation of international human rights.
If one looks at the countries that voted against Sri Lanka at the last Human right Council you will see that except for Cuba and Venezuela all other Latin American countries voted against the Sri Lankan government. Some say it is because the Americans twisted their arm but we must recognize that those in power in all these countries today are those who fought against military dictatorship using international human rights as one of their indispensible tools- if not their major tool. Disappearances are truly anathema to the countries of Latin America given their history.
THIRD PHASE: GOLDEN ERA OF UN HUMAN RIGHTS ACTIVITY
The third phase of human rights development may be called the Golden Era of UN human rights activity in which there was near universal consensus and activism on human rights matters. This took place at the end of the eighties and through the nineties.
With the end of the cold war, again, you have a whole bloc of countries taking their place at the UN having used international human rights to fight off dictatorship. The countries of Eastern Europe and the countries of North Asia such South Korea became strong supporters of international human rights. Again if you go back and take a look at the Sri Lanka vote-Eastern Europe is a solid block against the government of Sri Lanka. You will also note that South Korea voted against the government.
The 1990s was indeed the golden era of UN human rights activity. There was a committed, universal spirit in the corridors of the United Nations. I was fortunate to be the Special Rapporteur on Violence Against Women during that period. Women’s and Children’s rights came to the fore during this era and the concept of sovereignty completely receded to the background and was rarely mentioned. The Women’s and Children’s Conventions dramatically pierced the veil of sovereignty- going so far as to claim the right to transform national societies and change individual and state behavior. Words like “eliminating traditional practices”, “modifying social behavior” were used throughout these documents.
In addition by the end of the decade there were around 40 special rapporteurs or working groups of the Commission each tasked with reporting and naming and shaming governments with regard to their own particular issue- whether it be freedom from torture, the right to education or violence against women.
These procedures are now well established and regardless of the political currents of the day- they continue to fact find, document, collect evidence and file reports on a regular and consistent basis. No country is immune from this process. Not even the United States. The Special Rapporteur on extra judicial killings, the Special Rapporteur on torture, the Working Group on Arbitrary Detention have all written very strong reports on the US. I myself visited US prisons, as there were allegations of sexual abuse of female prisoners.
Behind the bluster and Machiavellian deals made by member states at international arenas, there is the quiet, constant and consistent collection of human rights information by UN human rights mechanisms, departments and agencies.
FOURTH PHASE: ACCOUNTABILITY AND THE RESPONSIBILITY TO PROTECT
The fourth phase of human rights- what may be called the era of accountability- came about after the horrible wars in Bosnia and Rwanda- wars we have now forgotten. Like the holocaust they were so horrific that there was a major philosophical shift in the international system. The Security Council in 2000 for the first time recognized that violations of human rights and humanitarian law are a threat to international peace and security and therefore under its purview. In addition, till then international processes had only been concerned with naming and shaming governments. Now we move into the phase where there is a call for individual accountability of perpetrators and for sending individuals to jail. International humanitarian law was now augmenting international human rights.
International humanitarian law- the law of armed conflict- is based on two principles. The first is the principle of distinction- the distinction between combatants and civilians- combatants may be killed during combat but if they are taken prisoner there are certain very important safeguards.
Civilians, on the other hand, must be protected as much as possible except in situations of military necessity. If there is uncertainty, the ICRC that is the assigned custodian of the Geneva Conventions, has repeatedly said that the additional protocols point to the fact that the benefit of doubt must go to protecting the civilian.
The second principle of international humanitarian law is the principle of proportionality- if a state is using force that force must be reasonable and proportionate- a principle that the Human Rights Council has repeatedly stated is being clearly violated by Israel in Gaza. In ascertaining proportionality, the ICRC has also set out guidelines and procedures to minimize civilian casualty.
In addition, international humanitarian law means that a perpetrator can theoretically be tried anywhere in the world under what is termed universal jurisdiction. The individual actors can now face personal accountability- remember the Pinochet case in the UK and Spain? It is also the reason why Dick Cheney and George Bush have been warned against travelling to Europe. This type of invocation of universal jurisdiction will depend on the legal system and judges of each country.
The other very important aspect of international humanitarian law is that it also applies to non-state actors. Government soldiers as well as individual members of armed, rebel groups can be held criminally liable.
I cannot even begin to describe to you the horrors of the two wars in Bosnia and Rwanda. I went to Rwanda a month after the genocide. I was taken to a church. I was initially struck by a beautiful image of the virgin Mary but when I looked down there was layer upon layer of skeletons, thousands of them, their limbs torn apart by machete blows and physical abuse: – and all this in a house of worship where Hutu nuns had called in the Interhamwe militia to kill off the Tutus who had found refuge with them.
I have also interviewed countless Bosnian and Croatian women who spoke about how they were repeatedly gang raped until they were pregnant with the perpetrators continually saying, “you will now bear a Serb baby”.
As a result of all these atrocities- there was a seismic shift in the international system forcing it to move beyond naming and shaming governments to the criminal accountability of individuals. The Security Council set up the International Tribunal on the Former Yugoslavia and the International Tribunal on Rwanda. It is important to note that no one cast a veto. In 1997 A Permanent International Criminal Court, the ICC was created under the Rome statute. Individuals could now be brought to an international criminal trial though the jurisdiction is based on consent.
In the next two decades witnesses have come before these courts and people have been prosecuted and convicted. I was involved in the case of Thomas Lubanga, a man who had recruited thousands of child soldiers. In this context I had the interesting experience of submitting an amicus curiae or an expert opinion and giving evidence before the International Criminal Court or the ICC.
Because of these wars in Bosnia and Rwanda another major development took place. The old hazy concept of humanitarian intervention that had been in disuse was reborn as the Doctrine of the Responsibility to Protect or R2P. Sometime in 2008 there was a great deal of needless panic in Sri Lanka about the Doctrine of the Responsibility to Protect or R2P. One taxi driver coming from the airport- the only English word he seemed to know was R2P. He had visions of UN peacekeepers and the US marines landing on our shores. Only war can make people so fully lose their faculty for rational and sensible thought.
R2P is a doctrine really born out of the guilt of three people, General Dallaire, a Canadian, who was the head of UN Peacekeeping forces in Rwanda during the genocide, Kofi Annan who was head of the UN Department of Peacekeeping at that time and Bill Clinton, President of the US at that time.
Just before the genocide was about to break, General Dallaire pleaded with his superiors to allow him to be more active and to go and collect the weapons of the militias since he knew where they were stored. The United States after, a disastrous intervention in Somalia- remember the famous phrase “Black Hawk Down”, – did not want to respond and so Kofi did not give the instructions. As a result a million people were killed. General Dallaire resigned from the United Nations, suffered a nervous breakdown and when he recovered made it his mission to campaign for this doctrine.
With growing international interest, a Commission was set up in Canada with Gareth Evans, the former foreign minister of Australia, as Chair to formulate this doctrine of the responsibility to protect. What the Commission came up with was very broad- it allowed for humanitarian intervention in the event of widespread war crimes as well as in the case of natural disasters. It also endorsed multilateral as well as unilateral use of force by nation states to prevent a humanitarian disaster- a recommendation that was very controversial- the unilateral part gave many countries the Goosebumps.
Kofi Annan took up the report and introduced some elements into the Heads of State summit held in 2005. It had been cut down to include humanitarian intervention only in the case of war crimes, crimes against humanity and genocide- not natural disasters- and only allowed the use of military force through endorsement by the Security Council under Chapter 7 where Russia and China would also be present with their vetoes. This placated the heads of state gathered there at that time and they all signed the Summit document including Sri Lanka.
The final paper presented by the Secretary General made it clear that R2P had three pillars- the first pillar recognized that the primary responsibility for protection of citizens lay with the nation state and that a fundamental duty of sovereignty was to protect your citizens.
The second pillar was diplomacy. If it looks like a country is failing to protect all its citizens or part of its citizens there should be intensive multilateral and regional diplomacy. As we know from the recent past- a country will be inundated with dozens of international visitors.
If all that fails and there is still imminent danger to the population then there could be a use of military force pursuant to a Security Council resolution. In 2009 at the height of the Sri Lankan civil war the R2P doctrine had not even been fully formulated within the UN system and with friends in the Security Council, Sri Lanka was never in any danger.
In the panic surrounding R2P in Sri Lanka- there was a lot of talk of NATO in Kosovo, the US in Iraq, the west is going to invade us etc.- but it must be recognized that R2P or humanitarian military intervention has also been conducted by many non-western states. Vietnam went into Cambodia to get rid of Pol Pot, Tanzania went into Uganda to get rid of Idi Amin, India helped create Bangladesh, and now Russia is threatening humanitarian intervention in Ukraine.
What R2P within the UN system tries to do is to systematically develop the concept that countries have in the past used unilaterally, to evolve a consensus on the meaning and content of humanitarian intervention and also to create a recognizable process without leaving it to the arbitrary whims of individual nation states. In that sense it should be a welcome development. It should not be the basis for mindless panic.
FIFTH PHASE: THE WAR ON TERROR
The final and fifth phase of human rights at the international level is the consequences of the War on Terror. This War on Terror was launched by the US under the administration of President George Bush, Dick Cheney and the Donald Rumsfeld. Terrorism in the past was seen as a police operation operating within a human rights framework- for example that is how the British dealt with the IRA or Spain with the Basque nationalists. The Bush administration made it into a “war” both domestic and international – a major conceptual leap that sent human rights activists spinning.
In response to September 11th 2001 the Bush administration basically wiped out many of the safeguards in the law especially with regard to the settled area of human rights law- civil and political right, including freedom from torture-the first generation of rights and especially as it applied to the Muslim population. The US adopted the Patriot Act that had draconian powers- a little like our PTA -and enabled extensive surveillance of the population. Edward Snowden is a hero for many people in that his exposures have forced the US government to cut back on the Patriot Act. There is a new administration in Washington and to be fair they have begun to undo the damage of the Patriot Act but it is still clearly not enough.
In addition after September 11th we have had to deal with the hell hole known as Guantanamo, a place that at best could be described as a place beyond the law where military commissions are now meting out rough justice, I was involved in one of the cases- the case of Omar Khadr- a child soldier.
Guantanamo will not go away because the US Congress refuses to let any of the inmates into the US to face a fair trial and home countries refuse to take their nationals who are kept in Guantanamo but have not been charged. The American Civil Liberties Union and the Center for Constitutional rights, brave and persistent lawyers, many of them from the Jewish faith, pointing again to the universalist vision of human rights, keep struggling against many odds, including threats to their own security and hate from their neighbours, to protect the rights of their Muslim clients. Yet Guantanamo lingers like a cancer on the body politic.
Finally, the Bush administration’s aggressive pursuit of counter terrorism, has raised a whole host of technological and legal issues.
For example the widespread use of the strategy of targeted assassinations, invented by the Israelis, has created major problems for those of us interested in the protection of civilians.
Under what regime do we look at targeted assassinations? Are they “armed conflict” under an international humanitarian law regime where you can kill combatants including what is now termed “continuous combatants” even while they are sleeping? This is the argument was used by the US with regard to the killing of Osama Bin Laden.
“Armed conflict” is also the framework used to justify targeted assassinations in the form of bombing an alleged terrorist from the air in a public location or a building regardless of the collateral damage. Under this line of argument wherever an alleged terrorist is present, that place becomes a justifiable military target. In that case no one is safe anywhere as the children in the UN school in Gaza found out. I must immediately add that the ICRC has not endorsed this line of thinking.
In the alternative is apprehending and assassinating terrorists to be approached as a “police style operation” – after all there is no armed battle of any sort taking place. Then the use of force would operate under a human rights regime where you can kill only in self-defense or if such killing is absolutely necessary. For example when pursuing the Boston marathon bombers, a pursuit that is technically a part of the war on terror, no one was bombing buildings from the air and killing Americans and calling it collateral damage. It would not even have crossed their minds. They just conducted a police operation.
As you know the American and the Israeli governments would do anything and everything, by hook or by crook to save the life of even one of their citizens. After that someone will make a blockbuster movie about it and it will win an academy award. But saving the lives of other peoples- that is a different story. As we know the war on terror more often than not values life asymmetrically.
Even in the Sri Lankan context, whenever I hear the words “human shield” or “grey area between combatants and civilians”, or “old women forced into building bunkers” are really combatants, my antennas go up. It only means that someone is saying that someone else’s life is not worth saving- usually a member of another ethnic or religious group. Luckily the ICRC so far has not given into the pressure from the so-called counter terrorism lobby to change the substance of international humanitarian law.
Nevertheless there is an area where new international action is necessary with regard to international humanitarian law and that is in the area of drones and other similar technological innovations used for armed attack. What are the procedures that must be taken prior to a drone attack to avoid civilian casualties? How do we measure the humanitarian doctrines of collateral damage and military necessity in the eventuality of drone attacks? Can drones cross national boundaries using the “hot pursuit” legal argument?
In drone attacks the claim is that collateral damage is far less and the strikes more precise than with the usual type of aerial bombardment but this is deeply contested even by the ICRC who say drones create unreachable military expectations of precision. There is still collateral damage and the surveillance and intimidation of the population is constant and total. According to reports children are terribly traumatised by the persistent droning sound above their head throughout the day and night..
There is now a growing international movement for developing an international convention on drones and similar technology. It is time that based on the evidence available we move the international system to start putting the brakes.
I often read morally self righteous articles in the Sri Lankan papers stating that no-one places a spotlight on crimes by the West- well if you want to read an excellent report on the effect of drones on the targeted population go to the report jointly prepared by the Human Rights Clinics of the Stanford University Law School and New York University Law School Human Rights Clinics. At great risk to their lives these young students went to North West Pakistan, lived with the population and then wrote what I believe is an excellent report- a basis for future international action.
The actions of terrorists around the world, the ghastly bombings of civilian places, beheadings of dissenters, journalists and westerners and the absolutely outlandish use of child soldiers are also horrific. I think we were all sick to our stomachs viewing the beheading of James Foley. Perhaps even more sick when we see children training to be suicide bombers. Nothing can condone this kind of behavior.
When I was young I was a complete pacifist but in my work with women and children I have seen the true face of evil- such as for example the actions of Joseph Kony and the Lords Resistance Army in Uganda. I realize that military force may have to be used even in the Sri Lankan context when faced with a ruthless, deadly genius like Prabhakaran who did not know how or when to make peace.
However the deathly nature of modern weapons and warfare compels us to ensure the strict, effective, and proper implementation of the rule of law, especially the laws of war, or we are asking for widespread destruction and impunity. We cannot expect civilized behavior from the terrorists but we can definitely expect it from the member states of the United Nations.
This fifth stage of international human rights evolution described above has therefore been a push back on civil and political rights internationally especially by the counter terrorism lobby led by Israel and the Bush administration. In addition the polarising nature of the Bush administration policies destroyed the consensus and universalism that had emerged on human rights in the nineteen nineties leading to fraught discussions both at the Security Council and the Human Rights Council.
At the same time the institutions and processes set up earlier in the 1980s and the 1990s are now working in an even more systematic manner, constantly fact finding, gathering evidence and filing reports. As I said earlier, information on human rights abuses is gathered and processed on a constant basis. As a result violators of human rights today have really no place to hide. We then have this strange paradox of intensive human rights activity from the grassroots upward existing alongside major human rights challenges at the international level.
As a global community we have inherited this edifice of human rights that has been created over decades. We cannot escape it and our best diplomats have understood that and have engaged it successfully at different stages of our history. Nevertheless the one question on everyone’s mind is of course the question of double standards. I hear this constantly. If the US is not in the dock for Iraq why anyone else?
Before I speak about the important issue of double standards let me point out two things: _
First- are we asking the correct question when we scream “Why the double standards”? Should our response to international criticism by a defensive “we may be wrong but you are worse”. Is it not better for us to just focus on doing the right thing regardless of what others say or do? After all no one will be able to criticize us if we do not give them the room to do so.
Second, while it is true that it is difficult to punish the permanent five members of the Security Council and hold them accountable for violations because of their veto, Sri Lanka is not the only country that is criticized internationally. As you saw with the recent incidents in Gaza, the High Commissioner for Human Rights was as critical if not more critical of Israeli actions and the Human Rights Council has passed two resolutions against Israel including one asking the OHCHR to conduct an inquiry along the lines of the resolution on Sri Lanka. In this case one must also point out that the United States was isolated. Israel may not be punished by the UN system because of the US veto in the Security Council. But, she will be monitored and evidence will be gathered, perhaps for action at some future date.
Nevertheless, there is no question that international power and politics insulates some countries over the others. And yet, the truth is that double standards do exist even in national legal systems. Let us turn the searchlight inward-let us take our own national system. A minister ties someone to a tree- he is not arrested. A religious figure incites violence, he is not arrested, a politician murders another politician in cold blood in front of a crowd with plenty of witnesses but now wanders free – yes we too have impunity for the rich and the powerful. National and international legal systems are not that different.
So we must ask ourselves- is the answer to these double standards at the national and international level to do nothing, dismantle the entire criminal justice system, let everyone go free and allow for widespread impunity. Surely not- the answer is to keep putting the pressure so that impunity will eventually disappear and everyone will finally be held accountable.
The humanitarian approach to all this has always been very patient- one step at a time. Justice for one person is better than justice for none. There may be double standards but with one conviction there will also be a measure of deterrence. Convictions always send a very strong signal. After the case against Thomas Lubanga was filed by the ICC with regard to child soldiers whenever I met rebel groups in the Sudan or even the Philippines the first question was- “what about the ICC”? That to me is the beginning of deterrence.
Today in Sri Lanka we are immersed in a climate of cynical realism and arguments about how to out conspire the next conspiracy theorist. We are told today that the international community is dominated by the US and other imperialist powers. These powers are out to get us and force regime change. We of course have done nothing wrong. We are told that we should not participate in what is a western, hegemonic UN process. Anyone who consorts with the West or the UN is a traitor. Our duty is to subvert the system until it changes- when that is, is anybody’s guess. We are urged to embrace and celebrate our status as a brave, international outcast. A kind of 1960s Macho nationalism that is loved by many prevails in Sri Lanka today.
And yet we are searching desperately for foreign direct investment. Over 60% of our exports go to the west, including our children for education and employment. We also want to become the capitalist hub of South Asia as well as a pleasure and tourist resort. Surely there must be a more sophisticated response?
This sort of cynical realism, which lives in constant fear of encirclement and in a state of siege, is not the best mindset to move our country forward- it never is. It is a ploy of defensiveness and evidence of a lack of imagination. It cannot be our future. We must have hope that we will eventually have the courage to confront the ugliness within us and that truth and justice will prevail even in the hardest of cases.
As you can see from what I have said so far- human rights is a theory and a practice at the United Nations has been long in the making. It is not the plot of an individual country or groups of countries- it is a discourse used by everyone and is precious to many blocs around the world. It is a concept that has grown and evolved because of situations on the ground whether it is World War II, apartheid in South Africa, disappearances in Latin America or Genocide in Rwanda or the new technologies of war.
Just before I left the UN I met an Asian diplomat who said that the days of human rights and western dominance were over and that it may be the best time to leave. As he said this with a cynical smile I thought of the countless women and children whom I have met around the world, victims of the worst kind of brutality for whom human rights was devoid of politics and a real whisper of hope. I remember one woman in Rwanda, who had been brutally raped and who was forced to kill her own child by burying him in the sand, say to me, “Take my story, take it to Geneva- this must never happen to another woman”.
Martin Luther King, in a quote that is very famous, once said “the arc of history bends toward justice”. I too believe that- it is often a matter of time- one year, ten years perhaps even a hundred years but the search for truth and justice will happen.