R2P or R2PT? The 'Responsibility
to Protect from Terrorism'
By : Kalana Senaratne
Kalana Senaratne studied at St Thomas' College Mt Lavinia,
Sri Lanka. He holds LL.B. and LL.M. degrees from the University of London.
Soon after completing his postgraduate studies at University College
London (UCL) in 2006, he worked at the Secretariat for Coordinating
the Peace Process( SCOPP).He was also a research assistant to Judge
C.G. Weeramantry, from 2003 to 2005.
There is fear and uncertainty, about life and living. Roadside bombs,
bombs inside buses and bombs inside trains are what we hear about most.
When and where would the next bomb explode? There is uncertainty about
reaching your workplace in the morning. There is uncertainty about reaching
home in the evening. One may be alive, breathing. Yet, one dies many
deaths, fearing a bomb here, or a bomb there. Bodies turn to smoke in
seconds. There is indiscriminate killing of civilians. Life, amidst
LTTE terrorism is, as Hobbes would have said, 'solitary, poor, nasty,
brutish and short'.
In this context, it may be very useful to inquire the applicability
of what the International Commission on Intervention and State Sovereignty
(ICISS) calls the 'Responsibility to Protect' (R2P). It may be useful
to think a bit. It may be useful to consider the case for what I call
the R2PT - 'Responsibility to Protect from Terrorism'. In this piece,
I wish to argue that R2PT is far more applicable and urgent (not to
mention acceptable) to the Sri Lankan context than R2P.
First and foremost, some bitter pills need to be swallowed. So let's
take our medicine first. Or, let those who are sick do some swallowing.
Actors and 'Responsibility': bitter pills for many to swallow
A doubt arises in a matter which is doubtful. Many may not have noted,
but a shadow is cast on the entire fabric of the R2P, when considering
the bona fides of certain principal actors who were behind the preparation
of the ICISS Report on the R2P. Let's pick Lloyd Axworthy, for example.
Lloyd Axworthy, a former Minister of Foreign Affairs of Canada, was
a staunch supporter of the illegal NATO bombing of Kosovo. More than
the protection of human rights, that illegal military intervention bypassing
the UN Charter had much to do with the spread of Western supremacy and
dependency, the trans-Balkan AMBO pipeline (Albanian Macedonian Bulgarian
Oil Corporation pipeline) and Camp Bondsteel, the largest foreign military
base constructed since Vietnam. Kosova declared independence. The rest
is history.
Interestingly, Lloyd Axworthy, who supported this flagrant violation
of the most fundamental principles of international law, was also (by
coincidence, perhaps?) the one who initiated the ICISS, and chaired
its Advisory Board (!). Bitter, indeed.
Then come issues concerning terminology, when considered from a legal
perspective. Fundamentally, the 'R' in the R2P raises certain fundamental
problems in respect of what the American jurist Wesley Hohfeld calls
'jural correlatives'. Appreciating and understanding the jural correlatives
is critical as they relate to the jural relationship between two entities
or persons as well as the logical consistency of legal terms. So while,
for example, the jural correlative of 'right' is 'duty' and of 'power'
is 'liability', the jural correlative of 'responsibility' is questionable.
For there to be 'responsibility' do we claim the existence of a 'right'
to be protected? Or, a 'duty' to be protected? Or what? We can indeed
claim so, from the State to which we belong. But from others? From our
neighbouring State(s)? Our allies or friends? A regional body? The United
Nations (UN)? The Security Council? 'Responsibility', therefore, becomes
a meaningless, as well as a doubtful and dangerous term.
Yet, for the sake of argument, let us proceed with the 'R'. The elaboration
of 'sovereignty' as 'responsibility' was the reason for the ICISS (Para
2.14-5 of the Report of the Commission, of December 2001), to adopt
the term 'responsibility' (apart from the deliberate avoidance of 'humanitarian
intervention', as the words did not help to carry forward the debate!
- para 2.4).
R2P: inapplicable and unacceptable in Sri Lanka
Be that as it may, the rationale behind the R2P is an appreciable one.
There are of course all manner of rogues who tout R2P like a mantra,
without knowing what it means and/or what it entails both by way of
process and consequence; but the protection of a population where grave
human rights violations occur is necessary. Such dastardly acts should
not be tolerated. However, it should be understood that the R2P is far
from being, at least, a principle of customary international law. There
is insufficient state practice. There is insufficient evidence to suggest
that States consider the protection of populations of other States as
a legal responsibility.
Moreover, the important criterion that needs to be satisfied (apart
from the strict legal conditions and limitations which are placed in
the form of, for example, Security Council authorization) is the threshold
criterion. This is where the logic, of proponents of R2P as applicable
to Sri Lanka, splits. The threshold that justifies the application of
the R2P is quite high. The threshold, I believe was set by Kofi Annan,
in a question raised in his Millennium Report to the General Assembly:
'… if humanitarian intervention is, indeed, an unacceptable assault
on sovereignty, how should we respond to a Rwanda, to a Srebrenica -
to gross and systematic violations of human rights that offend every
precept of our common humanity?' A valid question, deserving an answer
in the affirmative, if the proper legal requirements are met.
But, is the Sri Lankan human rights situation akin to that which was
seen in 'Rwanda or Srebrenica'? Is there anything even remotely comparable
to the massacre of 800,000 Tutsis, or even the Great Lake Refugee crisis
when around 2 million Hutus fled that country? Or is there anything
similar to what the Serbian forces did to Bosniaks? No. Let us be mindful
of the nature of the threshold again, mindful of the consequences of
the R2P to a particular State. The importance of clearing the threshold
is then evident.
A case for R2PT: human rights of some vs. human rights of all
If a case for R2P based on human rights violations is made because
of what happened to Keith Noyahr or J.S. Tissanayagam or Father Jim
Brown or the alleged abductions and disappearances of whom the culprits
remain at large, a fortiori, a much stronger case exists for R2PT based
on the brutal assassination of, for example, Jeyeraj Fernandopulle,
D.M. Dassanayaka, et al, and the innocent civilians killed by the recent
bombings at Nugegoda, the Fort Railway Station, Dehiwala, Piliyandala,
Katubedda, Polgolla, etc. etc. etc. It is alleged that human rights
violations of the former kind are discriminate and distinguishable.
But it is understood beyond question, that human rights violations of
the latter kind (which come mostly in the form of death, and a complete
negation of the 'right to life') are indiscriminate. By addressing the
cause for the violation of the rights of the latter, cannot we address
the cause of the violations of the rights of the former? Think. I will
explain.
R2PT: a solution to avert R2P
There is uncertainty and ambiguity concerning the real culprits of
human rights violations when terrorism has raised its ugly head to such
a despicable level. Let's be honest about it. The blame game is most
intense whenever a random killing, abduction or a disappearance of a
person is reported. Everybody is blamed. No one takes the blame. There
is an eternal state of denial. The real culprits go free. Meet it or
shirk it, that is how it is.
The danger in all this is that anyone, be it certain elements of the
Government, the LTTE, or any other clandestine group, can exploit the
situation to wilfully commit human rights violations. What is the fundamental
cause though? Terrorism.
There are other problems too. Consider the enactment of those 'draconian'
laws and regulations which run counter to fundamental human rights and
justice. Take Britain for instance, which introduced control orders
under their anti-terrorism legislation. Critics say they are a blunt
and draconian tool. The House of Lords Judicial Committee, in October
2007, held that orders confining suspects to their homes for 18 hours
a day breached the right to liberty. What is the fundamental problem
which Governments try to address through such enactments? Terrorism,
again.
Do not forget, that the 'terrorist veil' behind which many take cover,
is all too thick. It clouds many things and many people. Get rid of
terrorism, and you will realise who the real culprits are. Keep tolerating
or appeasing terrorism, and you will not know for sure who the real
culprits are. Terrorism affects everybody's human rights. Dead or alive,
we are victims of LTTE terrorism, first and foremost. As the Report
of the UN Secretary General of 27 April 2006 titled 'Uniting against
Terrorism: recommendations for a global counter-terrorism strategy'
(A/60/825) reminds us, 'victims of terrorist acts are denied their most
fundamental human rights' (paragraph 6). The application of R2PT then
would do away with the need to invoke the R2P.
So, if by human rights the Jehan Ps or the Nimalka Fs mean the rights
of a selected few, then I rest my case. But I like to believe that what
they mean when chest beating about human rights violations, are the
human rights violations concerning all. 'All', meaning the rights of
those abducted or displaced or attacked, as well as the rights of those
blown to bits by a suicide bombing or a claymore. So let's at least
acknowledge the brutality of terrorism. Let's realize that terrorism
applies indiscriminately. Hence, R2PT rests on a firm moral and ethical
foundation.
R2PT: the international obligation to fight terrorism
So, why not a case for the protection of all of us from terrorism?
Why forget the international campaign concerning the fight against terrorism?
I am referring to terrorism pre-9/11 as well as post-9/11. I refer to
terrorism perpetrated anywhere, in all its forms and manifestations.
Have not States understood or realized the overwhelming obligation to
protect lives by combating terrorism? Let us recap, briefly.
It was as far back as Nov. 10th of 1934 that a resolution adopted by
the Council of the League of Nations made particular reference to the
duty of every State 'neither to encourage or tolerate on its territory
any terrorist activity, and to the fact that 'every State must do all
in its power to prevent and repress acts of this nature and for this
purpose lend its assistance to Governments which request it'. Consider
the progress made since then. There was the 1937 Geneva Convention for
the Prevention and Punishment of Terrorism which echoed the above sentiments.
Thereafter, with the establishment of the UN came a renewed effort to
combat terrorism globally. 13 International Conventions on terrorism
have been adopted so far under the aegis of the UN. Consider the European
Convention on the Suppression of Terrorism of 1977. Consider the SAARC
Regional Convention on the Suppression of Terrorism adopted in 1987.
Note the importance stressed on combating terrorism. These are legal
obligations, mind you.
Consider the above quoted 'Uniting against Terrorism' Report, which
reiterates that 'terrorists must never be allowed to create a pretext
for their actions. Whatever the causes they claim to be advancing, whatever
grievances they claim to be responding to, terrorism cannot be justified'
(paragraph 9). Note the Report asserting that Member States of the UN,
by becoming Parties to the UN Conventions on terrorism and implementing
them, 'emphasize that the international community does not tolerate
terrorist activities and is prepared to fight them'(para 12).
The Report also stresses the need to develop state capacity to prevent
terrorism, and in this regard urges Member States, inter alia, 'to review
the existing UN mandates related to assistance for building the capacity
to prevent terrorist attacks on the general population' (para 86). What
is interesting about the R2PT then is that it does not need to come
in the form of 'intervention', or a physical presence within the territory
of a State. It has much to do with technical assistance and greater
capacity building to prevent terrorist attacks, or the provision of
necessary artillery to combat and defeat terrorism. Hence, a good part
of the R2PT lies also in what the ICISS calls the responsibility to
prevent as well as the responsibility to react.
Also, the R2PT takes into account the development of legal principles
that have helped fight terrorism effectively. Terrorism has had a very
positive impact on a number of principles which suggest very clearly
that there is an obligation upon States to assist each other in countering
terrorist activity. As Dr. Rohan Perera, the current Chairman of the
UN Ad Hoc Committee on Terrorism has explained (see generally International
Terrorism, Vikas Publishers, 1997) principles such as the non use of
territory of one State for terrorist activities against another State,
the principle of universality of jurisdiction, the principle of 'extradite
or prosecute' and the exception to the principle of non-extradition
of political offenders in respect of terrorist offences, have been positively
influenced by the brutal phenomenon of international terrorism. Hence
R2PT also rests on a firm legal foundation.
Conclusion
We are a small, poor, third world country. We live amidst terrorism
perpetrated in its most brutal form. How then could States negate responsibility?
How then could States forget about our protection? Isn't there a case
for R2PT?
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