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.