Featured image courtesy Justitia
The sad demise of Sri Lankabhimanya Justice C. G. Weeramantry, one of the world’s eminent jurists and a legal scholar par excellence at the age of 90 on January 5 leaves a void in the legal fraternity that is difficult to fill. He left behind a legacy with a distinct mark of identity which was his own. An internationalist in the true sense of the word, Justice Weeramantry made a lasting contribution in the field of international judicial creativity. As a Judge of the International Court of Justice (ICJ) and later as its Vice-President, he stood out as the conscience of the Court. Going further, as the President of the International Association of Lawyers against Nuclear Arms, an author, an eminent legal scholar in international law and as an academic including being an Emeritus Professor at Monash University and a visiting Professor at Harvard University, his services rose above the institution he was associated with.
In this context, although history will record Justice Weeramantry’s contribution to legal literature, domestic as well as international, as both legendary and phenomenal, it will however be unjust to his larger-than-life personality, to reduce his contributions only to his legal scholarship and jurisprudence. In fact, he was a great thinker and visionary too who dreamed, envisioned and toiled tirelessly to create a world free of war, nuclear disasters, hate and bigotry. At a time when the world is grappling with the enormous challenge of surmounting the twin evils of war and hate, and is in dire need of larger- than-life personalities of his calibre, Justice Weeramantry’s loss will undoubtedly be felt more than ever.
Justice Weeramantry played a crucial role in strengthening and expanding the rule of international law and also became prominent in helping to unravel international disputes, notably as chair of the Nauru Commission of Inquiry from 1987-88. He was the recipient of the Right Livelihood Award in Stockholm in 2007, for his lifetime of ground-breaking work to strengthen and expand the rule of international law. His many monumental works demonstrated how international law can be used to address current global challenges such as the continued threat of nuclear weapons, the protection of human rights and the protection of the environment. Those who knew him will testify that he wasn’t fettered – rather, he was independent to the core. Unlike many others, when on the bench, he was a judge firmly convinced about the values and principles he held to. He was assertive in his articulation, elegant in his presentation, yet simple and clear in a way that is not easy to comprehend or even imitate.
As a world-renowned legal scholar and leading international jurist, his tireless global juristic efforts to hold nuclear powers to account under the remit of international law with regard to their use of nuclear weapons were legendary. Further, another area of jurisprudence where he left his indelible mark was his monumental work in showcasing and highlighting Islamic International law and Jurisprudence when there were obtrusive efforts to deny its’ due place, both at the local as well as global plane, either through malice or ignorance.
When the UN General Assembly requested the ICJ for an Opinion on the Legality of the Use or threat of use of Nuclear Weapons, Justice Weeramantry did not mince his words about the dangers of States using such weapons. His opinion is regarded as a leading exposition nuclear weapons’ illegality, and its resultant environmental damage to current and future generations for thousands of years to come. It is his authority which is most often cited when the illegality and environmental damage caused by nuclear weapons comes up for discussion. When his fellow judges of the ICJ ruled in favour of the legality of using nuclear weapons in self-defence, when the survival of the state was at stake, he clearly differed. When asked at a press interview, he opined:
“..Any use of a nuclear weapon in any circumstance whatsoever violates every rule of humanitarian law that has been evolved, after centuries of warfare and the sacrifice of millions of lives. No argument whatsoever could justify the indiscriminate killing of vast numbers of the population including women and children and the aged and infirm, the elimination of all historical and archaeological treasures, the pollution of earth, air and water for tens of thousands of years and the elimination of all forms of life in the area affected.
The use of nuclear weapons offends all the fundamental principles of humanitarian law. The self-defence argument, which may be valid in a court considering the conduct of an individual, does not hold where the act of self defence causes death and destruction to third parties, kills vast numbers of innocent bystanders, damages generations yet unborn, and causes irreversible environmental devastation. It would be criminal also in the sense that it would be a crime against future generations.
International law can be the strongest weapon for the establishment of the International Rule of Law, if only the nations of the world, especially the most powerful nations, give it due recognition. What is lacking is a general awareness on the part of the people of the world of the importance and potential of international law as this is a grossly neglected subject in all educational curricula. This is what I am striving to remedy, because a citizenry who are aware of the importance of international law will not allow their leaders to flaunt it as they currently do.
A clearly noticeable theme in his judicial methodology was his inclination to look beyond ‘Eurocentric’ perspectives in legal reasoning and embrace ideas from distinct cultures, worldviews and philosophies which accord greater wholesomeness to judicial opinions. Justice Weeramantry therefore strongly lobbied in the ICJ circles, to consider various religious traditions in law and cross cultural perspectives in understanding international law. His position was that ‘International law was not a modern construct and nor was it the product of any one civilisation. Ever since civilisation began, it has been the subject of thought by the great thinkers of each age and from at least four or five thousand years ago they have visualised a world community of nations living under an overarching system of law to which all states and rules were expected to conform’. He extensively quoted from religious scriptures and once supported his argument of illegality of nuclear wars by drawing upon the teaching of Hindu law over four thousand years ago and the advice given to the Indian prince Rama, by his generals.
This legal luminary of global repute did a monumental service to Islamic Jurisprudence as well when he authored many books and research articles to highlight that in the world of Islam too, there was much thought and writing about what we would today call international law – the treatment of prisoners of war, conduct on the battlefield, the sanctity of treaties, the privileged position of diplomats and the likes. He said that ‘All of these were elaborately discussed on the basis of the Holy Qu’ran and the numerous traditions of the Prophet Mohamed known as the Hadiths, dealing with these matters. These were assembled in treatises on international law by writers like Al Shaibani which appeared around eight centuries before the work of Hugo Grotius, the celebrated Dutch Jurist whose great work on War and Peace in 1625 is often considered to be the point of commencement of modern international law’
His well-presented book, ‘Islamic Jurisprudence: An International Perspective’, was a treat to read, providing many perspectives on this area of law which was deemed ‘novel’ to many, stating, ‘Islamic jurisprudence is a much misunderstood system. The misunderstanding is due to lack of information and to centuries of prejudice’. This work has also been translated to Sinhala as well. Herein, he tried to raise awareness among international lawyers about the sophistication of the Islamic legal tradition and about the ways in which a study of Islamic law might help enrich the body of international law. He argued that greater attention to Islamic legal norms was long overdue on the part of international lawyers and had “potential for assisting towards a juster world in the future.
In his book, Professor Weeramantry suggested that, if international lawyers took the time to understand the Islamic legal tradition, they would be surprised by the degree of intercommunication between Islamic and European legal cultures over the years and by their mutual influence on each other and by the congruence of the two Legal cultures on important principles of international law. By demonstrating that Islamic law was consistent in many respects with international law, international lawyers familiar with the Islamic legal tradition would be able to promote compliance with international law by Islamic states. He also argued that a study of the Islamic legal tradition helps to substantiate the claims of human rights theorists (claims with which he was deeply sympathetic) and thus would help legitimise a more aggressive use of human rights in international jurisprudence.
Weeramantry’s conviction that international lawyers should recognise the importance, sophistication, and legitimacy of Islamic law seems to be rooted in large part in his belief that the Islamic legal tradition provides crucial support for the thesis that there are universal human rights norms that are accepted in all civilisations. “In the contemporary world, when the Islamic influence is so powerful, there is a danger that if sufficient heed be not paid to Islamic attitudes and modes of thought, the UDHR doctrine in general may run into rough weather”. When Justice Weeramantry came to the ICJ bench, he predictably began to write opinions that mention Islamic law, when he found “the recent jurisprudence of the Court suggested that little effort has been made to draw upon the legal traditions and systems of non-Western peoples in the administration of international justice”.
His involvement in issues relating to local politico legal reforms in recent times were noteworthy too. The submissions he made to the Presidential Commission on LLRC in 2010 was very relevant in order to create an inclusive Sri Lankan Nation. He stressed ‘ In order to promote unity and reconciliation, two areas urgently needing attention are institutional and administrative measures relating to peace education and legislative measures essential for building confidence and trust. He submitted :
‘I believe it is essential in schools that in addition to being taught their religion, all children should be given at least some exposure to the basic teachings of the other religions. We are singularly fortunate in Sri Lanka to have the benefit of our of the world’s great religions in our midst and we are utterly neglecting one of our richest resources if we deny students the benefits of some understanding of their basic teachings. Going back to my schooldays. I remember that the Principal would in the assembly read short passages from the scriptures of the-religions with an extract from the scriptures of one religion each morning. Even at very young age we thus knew something of the teachings of other religions and were able to see how they all teach the same fundamentals in regard to the basic rules of human conduct.’
Further, he stressed that Sri Lankan judges unlike Western Judges have the added benefit of cross-cultural perspectives. ‘A Western judge tends largely to grow up in a mono-cultural setting and does not in general have this diversity of background. When it comes to administering the law this diversity of background gives the Sri Lankan judge the advantage of a great deal of tradition and cross-cultural perspectives. To my way of thinking the law can be greatly advanced especially to suit the needs of the 21st century, when we are moving in the direction of being global citizens with common problems such as the environment, common aspirations for a peaceful world and a set of universally shared values. This diversity of background can assist greatly in enriching the law’.
The Sri Lankan Nation in particular and the world in general has thus lost a great son ,an eminent jurist and a visionary for peace and it will be a great tribute to his memory if people can make his dream come true- to create a world and a nation free of war, bigotry and hate. May his soul rest in peace.
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