Terrorism and Human Rights
The Peter Pillai oration 2006 delivered by President's Counsel
Desmond Fernando
It is my privilege to deliver the Peter Pillai Oration. I had the
good fortune of being a student at St. Joseph's College, when he was
Rector. I was even more fortunate to be his pupil. He taught me
Government in the VIth form.
Father Peter was one of the outstanding men of his generation. He
combined a mind of the most dazzling brilliance with a deep commitment
to social justice.
Father Peter Pillai fought for the rights of the working class and
the under-privileged. On 14th October, 1936, he founded the Catholic
Social Guild and in January 1937, he began the Journal "Social Justice".
In the very first issue he stated, 'we repudiate most emphatically
the laissez-faire theory of economic liberalism, which claims for the
employer the right to make the maximum of profits at any wage that the
workman is willing to accept....".
Father Peter was strongly committed to Human Rights. It is thus
perhaps apposite that I should talk to you today on the theme of Human
Rights and Terrorism.
Terrorism
Terrorism is a widely used word. However, the question arises as to
what terrorism means. Can the term be defined and if so, would the
definition be an acceptable one? I have looked for the answer to this
question in a number of books and laws.
Professor Charles Townshend in his treatise on Terrorism published by
the Oxford University Press begins with these words. "Terrorism upsets
people. It does so deliberately. That is its point."
The whole question of terrorism was brought to the forefront on 11th
September, 2001 with the destruction of the twin towers in New York and
the killing of almost 4000 people.
This was followed by President Bush declaring "a war against terror".
The world finds itself after September 11th in an apparently open ended
and permanent state of emergency.
Both political scientists and lawyers have tried to define terrorism.
They distinguish terrorism from criminal violence or military action.
However, there is no accepted definition of terrorism or terrorist.
Why is this? It is because terrorist is a label. It has never been
voluntarily adopted, except with one exception by any individual or
group. It has been applied to them by others.
Generally by the governments of the States they attack. Sri Lanka has
a prevention of Terrorism Act but the Act has no definition of
Terrorism. However, the United Kingdom has been more ambitious in this
regard. It defines Terrorism for the purpose of the Terrorism Act 2000
as follows:-
(1) In this Act "terrorism" means the use or threat of action where:
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a
political, religious or ideological cause.
(2) Action falls within this subsection if it:
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or (e) is designed seriously to interfere with or
seriously to disrupt an electronic system.
On the other hand the USA defines it as a calculated use or threat of
violence to inculcate fear, intended to coerce or intimidate governments
or societies;
Having done this, they find it hard to specify the behaviour thus
condemned. However, both these States go on to do two things.
Firstly, they label certain organisations as Terrorist. Secondly,
they draw up schedules of proscribed offenses such as possession of
explosives or taking hostages. Most of these offenses are already
offenses under Ordinary Criminal Law.
For terrorism appears to be a state of mind rather than an activity.
In the view of the State, only the State has the right to use force.
Thus the State has a monopoly on the legitimate use of violence, except
with minor exceptions permitted by law such as the right to self-defence.
The term terrorism has had a chequered history. It has been said that
the very first dictionary definition was in 1798 by the Academie
Francaise, "system regime de la terreur".
In October 1793, the French Republic which had in the previous year
executed King Louis the XVIth declared terror "the order of the day" to
preserve the Revolution against its enemies, namely Kings and
Aristocrats.
However, most of its victims were ordinary civilians who refused to
recognise the attempt by the State to reorganise the Roman Catholic
Church. Amidst this horror and confusion, there were born two modern
concepts of Human Rights.
The committee of public safety and general security pioneered the
concepts of representative democracy and equality before the law. The
French Revolutionary leader Marat opposed the traditional concept that a
King was sovereign by divine right.
He dropped the term "divine right" and came up with a novel concept
that the people were sovereign and that the sovereignty of the people
was an imprescriptible right.
Since the French Revolution, groups of people have believed
themselves justified in opposing with violence a repressive regime in
which no freedom of political expression or organization was permitted.
Thus arose the puzzling statement that "one person's terrorist is
another's freedom fighter". It is this relativism which has made it
difficult to find an acceptable definition of terrorism.
An attempt to deal with this question was made in the 1st Geneva
Protocol of 1977 which dealt with this question and extends the
protection of the laws of war to those who "are fighting against
colonial domination and alien occupation and against racist regimes in
the exercise of their self-determination".
Article 44(3) of the protocol grants the legal status of combatants
and of prisoner of war status in case of capture to fighters who are not
members of the armed forces of a State and normally do not carry their
arms openly.
Inability to find a definition of terrorism which is totally
acceptable does not mean that one cannot make comments on it which help
one to understand terrorism. Clausewitz has defined war as the collision
of two living forces.
Terrorism by contrast is sometimes a negation of combat. Its targets
are attacked in a way that inhibits self-defence. Indiscriminate
bombings of a Temple or the suicide killing of a civilian whether he be
a leader or an ordinary citizen are typical terrorism acts.
Thus, we see in terrorism except for those terrorists who are
fighting racist regimes in the exercise of their right of self
determination of flouting of the international law of war and a refusal
to accept as binding the distinction between belligerents and neutrals,
combatants and non-combatants, legitimate and illegitimate targets.
Although the 20th Century produced successful wars of national
liberation and in the case of South Africa against racism with a
significant terrorist dimension, none succeeded by terrorism alone.
Thus, even when the African National Congress had a violent struggle
against Apartheid in South Africa, in the end it was negotiation between
Mandela and the South African Government that resulted in the abolition
of Apartheid and the election of Mandela who had spent many years in
Jail as a terrorist as President.
According to Terror and Just response by Professor Noam Chomsky of
the Massachusetts Institute of Technology', page 70 the Pentagon has
Mandela on its list of Terrorists. Mandela was however awarded the Nobel
Peace Prize some years ago.
Professor Chomsky also refers to State terror. He states "State
terror elsewhere in Central America in those years also counts as
international terrorism, in the light of the decisive U.S. role and
goals, sometimes frankly articulated, for example, by the Army's School
of the Americas, which trains Latin American military officers and takes
pride in the fact that "Liberation Theology... was defeated with the
assistance of the U.S. Army." (Terror and Just Response by Professor
Noam Chomsky, page 72)
However, it is clear that where a national liberation movement has as
its opponent a regime which shares its values, then the best method is a
non-violent campaign. This is how Mahatma Gandhi and Nehru won
independence for India from the British.
In the 30's and 40's, more and more Englishmen began to sympathize
with India's struggle for independence. Ultimately, the Labour Party
itself which came to power soon after the Second World War, set a
deadline for independence and sent Lord Mountbatten as the last Viceroy
of India.
It is significant that in the course of a non-violent procession led
by Mahatma Gandhi, when one man in the procession threw a stone at a
Policeman, Gandhi called off the entire procession. He was totally and
completely non-violent. This greatly impressed the minds of the liberal
British elite.
We must contrast this to the striking failures of those who have been
the purest adherents to terrorism like the urban guerrillas of the
1970's and the 1980's such as the German Red Army. The result of these
terrorist campaigns have not been the overthrow of State but the
reduction of the quality of freedom.
However, one must not be unaware of these who believe in the
liberating value of violence for the oppressed. In the words of Frantz
Fanon "it frees the native from his inferiority complex, his despair and
his inaction: it makes him fearless and restores his self respect".
Impact of Terrorism on HR
The next problem is, what is the impact of terrorism on Human Rights?
Six months after the September 11th attack, the American Jurist,
Professor Ronald Dworkin warned that the biggest damage resulting from
the counter terrorist reaction had been to the long cherished American
commitment to individual freedom.
Over reaction to terrorism will clearly have a most pernicious
long-term effect on the quality of our life.
How does a Democratic Society which is committed to Human Rights
react to terrorism? There is a well-known distinction between
anti-terrorist measures which consists of every lawful step a State
might take from special legislation to Martial Law but always keeping in
mind the rights of the subject.
On the other hand, counter-terrorism is the adoption of terrorist
methods such as assassination, arbitrarily reprisals, the bombing of
civilian targets and abduction by the States' own Forces. What we must
avoid is counter-terrorism. That is the use of terrorism by the States'
own Forces.
The principle of proportionality for Democratic States
It is important that the principle of proportionality as prescribed
by St. Thomas Aquinas is adhered to in this situation. It stands up
remarkably well to a modern view of justice and expediency.
The reaction of a State should be in proportion to the wound
inflicted on it. Such action should not add to the volume of violence
and the outcome of any counter attack should not lead to a greater
injustice than that which was the casus belli.
To take the example of Sri Lanka, we must remember that the present
ethnic struggle which had become violent resulted from two main causes.
Firstly, a failure to investigate and to bring to book those who were
responsible for the killing of large numbers of the Tamil ethnic
minority in the race riots of 1958, 1977 and 1983.
The State simply condoned those killings. This was particularly so in
1983 when the State reacted to the mass killings and sufferings of the
Tamil ethnic minority by enacting the 6th Amendment to the Constitution
which made it illegal for anyone to ask for a separate State. No one who
held public office or even practiced as lawyer had the right to ask for
a separate State.
This was a severe curtailment of the freedom of speech. Shortly
before there had been large scale massacres of youth in Jaffna who were
thought to be supporters of the TULF. Thus monsters like the late
unlamented Inspector Bastianpillai were allowed to run riot.
Navaratnaraja was one of the many men who died in Army custody with a
large number of injuries. A government which was a member of the United
Nations and bound by the Universal Declaration of Human Rights began to
deny many of those rights to a particular ethnic group.
They forgot that the preamble to the Universal Declaration of Human
Rights, states "whereas it is essential if man is not to be compelled to
have recourse as a last resort to rebellion against tyranny and
oppression that Human Rights should be protected by the rule of law."
At the time the Sixth amendment was passed, the Tamil parties had
decided that the only solution to the ethnic problem was the
establishment of a separate State. The Race riot of 1983 resulted in the
passing of the 6th Amendment of the Constitution.
This amendment prohibited any person from supporting, espousing,
promoting or advocating the establishment of a separate State.
The penalty for doing so was confiscation of all property other than
property to be determined by an order of Court as being necessary for
the sustenance of such person and his family.
He was deprived of his civic rights and if he was a member of
Parliament, he would cease to be a Member of parliament. Thus the rights
guaranteed by the UN Universal Declaration of Human Rights in Article 19
of the Freedom of Opinion & Expression was violated by the Constitution
of Sri Lanka.
In addition, as pointed out earlier, Article 3 which provides that
everyone has a right to life, liberty and security of person was openly
violated.
Thus the rationale for the rights set out in the Universal
Declaration for Human Rights, namely that these rights should be
protected by the rule of Law, "if man is not be compelled to have
recourse, as a last resort, to rebellion against tyranny and oppression,
that human rights should be protected by the rule of law" failed. The
consequence which it foresaw, namely rebellion, begang.
The second cause for the so called Terrorist Movement was the failure
of the Sri Lankan Government to honour agreements entered into between
successive Sri Lankan Governments and the Tamil people.
The first of these was the Bandaranaike-Chelvanayagam Pact which was
unilaterally abrogated by the Sri Lankan Government. The second was the
Dudley Senanayake-Chelvanayagam Pact which was abrogated by the Dudley
Senanayake Government.
The Dudley Senanayake-Chelvanayagam Pact was abrogated because the
Opposition which included two Marxist Parties, the LSSP and the CP
roused the masses with the crudest and most diabolical racist slogans.
One of these was the notorious, "Dudleyge Bade Masala Vadai". So when
Mr. Dudley Senanayake failed to implement the agreement, he wanted to
resign from the Premiership and give up politics.
However, the late Mr. Chelvanayagam prevailed upon him to continue in
Office in order that there would be some safeguard that the Tamils would
be fairly treated by the Government.
Thus, the Tamils went through the bitter experience of being betrayed
by two successive Sri Lankan Governments as well as having their rights
guaranteed by the Universal Declaration of Human Rights grossly
violated.
The older Tamil leaders were patient. However, Tamil youth were not.
Thus, we have today the LTTE.
The Solution
However, all is not lost. There have been similar problems in other
countries. In Palestine, the problem like ours was an ethnic problem.
In Ireland, it was more a problem of religion. In both countries,
particularly in Ireland, a successful Peace Process took place. One of
the essential ingredients was the facilitation of the process by an
outside power.
In the case of Ireland, this included both a United States Senator
and a Finnish Leader. In Sri Lanka the Ceasefire Agreement of 2002 was
in important milestone towards establishing a humanitarian regime in our
country.
This agreement was accompanied by a Peace Process which was
facilitated by Norway but today because of the listing of the LTTE by
the European Union as a Terrorist Organization, three of the 5 Nordic
countries which are members of the EU have been forced at the instance
of the LTTE to withdraw from the Monitoring Mission. This leaves behind
only Norway and Iceland.
Iceland is a country with a minuscule army. This means that Norway
which has to appoint the SLMM Chairman; but has appointed someone from
another Nordic country has to also now preside over the Ceasefire
Monitoring Mission.
This is not satisfactory because the SLMM headed by a Norwegian will
have to make a finding either that the Government or the LTTE is guilty
of a violation of The CFA. This would embarrass it considerably in its
role as a Peace Facilitator.
The importance of confidence building
To ensure peace and prosperity for Sri Lanka, it is important that
confidence building between the government of Sri Lanka and the LTTE
should take place.
At the very first meeting in Oslo between the LTTE and the government
of Sri Lanka, the LTTE said that they were willing to withdraw its
demand for a separate State and agree to a Federal State.
This was a major concession. The then Prime Minister, Mr. Ranil
Wickremesinghe also ensured that Tamils did not have second class
justice under the Prevention of Terrorism Act. This reprehensible Act
made confessions to the Police admissible.
The Attorney General was requested to withdraw every single
indictment based entirely on confessions.
He was also directed not to ask for any postponements in trials under
the PTA. Most check points in the country where Tamils had been harassed
for years and several Tamil girls raped by the Army and Police were also
withdrawn forthwith.
The LTTE agreed that Traffic could use the A9 road to Jaffna. Not
only did the humanitarian situation improver remarkably but our growth
rate increased from minus 1 to 6% Foreign investment came to Sri Lanka.
Tourism once more became a major foreign exchange earner.
During this time came the Donors' pre Conference which was held in
Washington in 2003. The LTTE were not able to attend, because it had
been proscribed in the USA.
This was an unfortunate development. Then came the Donor's Conference
in April 2003 in Tokyo which the LTTE refused to attend because of the
Washington problem.
This indicates the importance of the donors - particularly the four
co-chairs, namely the UN, USA, Japan and EU consulting the Norwegian
facilitator who knows the sensitivities of the parties before taking any
decision or issuing a public statement.
On 31st October 2003, the LTTE submitted the draft Internal Self
Government Agreement. On 3rd November, 2003, President Kumaratunga took
away 3 Ministries, namely Defence, Interior and Media from the Ranil
Wickremesinghe Government.
Without control of the Ministries of Defence & Interior, it was not
possible for the Ranil Wickeremesinghe Government to honour the
undertakings given under the Ceasefire Agreement with regard to the
armed forces and Police.
To be continued |