Can human rights be protected without violating human rights?

H. L. D. Mahindapala

No state engaged in fighting wars of terror can escape accusations of violations of human rights. This is a universal fact common to all nations engaged in combating terrorism.

The degree of violations may vary from time to time, place to place and nation to nation. But the common thread that runs through all states is the unavoidable incidents that violate human rights "mostly as collateral damage in the war against terrorism, or in the war against violence coming from outside the democratic framework.

Therefore, selective condemnation of one state and not the other makes a mockery of human rights. It places vulnerable and fragile democracies at a total disadvantage over the ruthless powers of terrorist groups operating outside the pale of international humanitarian law.

Morality

On issues of morality involved in states combating terrorist groups the latter is at an advantage because they are not restrained by laws, accountability, public opinion, democratic norms or any other civilised consideration because their strength is in going against these fundamentals to force democratic societies to surrender to their intransigent demands.

As a result serious issues arise. For instance, when a democratically elected state is under siege by war criminals, ethnic cleansers, abductors of children, terrorists and enemies of human rights in general can this state abandon its moral, legal and political obligation to defend itself and its people using all necessary force, in land, air and sea, that may or may not entail violations of human rights in its defensive actions?

Is there a future for human rights if this democratically elected state surrenders to the mindless violence of the enemies of human rights? In other words, can human rights be protected without violating human rights?

Human rights cannot be protected by waving slogans or programmes of human rights alone. In times when human rights are under siege by the enemies of human rights it is the engagement of the counter-forces of the democratic state that can eventually restore and protect human rights.

Democracy

If that were not the case then Paikiasothy Saravanamuttu, Jehan Perera and Kumar Rupasinghe could have won all the human rights with their seminars and paper mantras leaving Lt. Gen. Sarath Fonseka, the Army Commander in the shade.

But the ground realities in the East, where restoration of democracy and the return to relative normalcy have triumphantly opened up new paths to peace and stability, point unmistakably to the fact that the Army Commander has contributed more than all the peace-mudalalis put together.

In fact it can be asserted, without fear of contradiction, that it is the sole contributions of the soldiers who fought all the way to the peak of Thoppigala that saved the rights of the people to express their free will at the last elections.

Idealism

Accordingly, the available evidence leads to the ineluctable conclusion that violence of the state even if it leads to a certain degree of the violations of human rights must necessarily be applied in varying degrees, depending on the needs of the security situation, as a primary condition for the restoration and preservation of human rights.

This may sound Machiavellian. But the stark truth in politics always sounds Machiavellian because this much-maligned political guru was a realist who avoided inapplicable theories like the plague.

Machiavelli never dealt with the 'ought' of politics. He was never into idealism, or utopianism, or fanciful theories that go to make never-never lands. He was focused, with his feet firmly fixed on the ground, on the here and now and the power play that goes to either make or break the grip on power.

Gaining power and retaining power that has been gained at any cost to protect the Prince was his primary objective.

The identical Machiavellian principle applies in the modern context to protect human rights. If democratic societies believe fervently that human rights are worth protecting then it must be won at all costs even at the cost of violating the human rights of the enemies of human rights and may be innocent bystanders who are bound to be the unintended victims of the war against the enemies of human rights.

Good and evil

Besides, it won't be long before the enemies of human rights will arm themselves with weapons of mass destruction. This alone makes it imperative that the democratic state will be compelled to use matching force preferably preemptive strikes to avoid mass scale violations of human rights.

It must be admitted that there have been times, and there will be many more times to come, when human rights can be protected only by violating some of the sacred tenets of human rights. It has been done in the past and it will be done in the future too.

There has never been a time when morality and higher principles including human rights have been won without violating morality and higher principles including human rights.

This is primarily because in the eternal battle between 'good' and evil the choice has always been not in choosing between good or evil but choosing between evil and the lesser evil. Whether we like it or not, the prevailing human conditions compels us to go for the lesser evil because pure good, however desirable, is never attainable.

The moral dilemma is in weighing one set of human rights against another. Those who go overboard holding human rights as an inviolable sacred tenet under all circumstances are burying their heads in the sand. They should reflect soberly on the lessons handed down from the past and consider whether they have a magic formula to escape the enemies of human rights.

Challenges

The Huns are always waiting at the gates of civilisation to destroy its noble achievements. Hitler is dead; but reincarnations of Hitler will never die. They will appear again and again like the Hydra-headed monster in manifestations more violent and horripilating than ever experienced before.

This poses a serious question for human rights activists: if another Hitler captures power in any part of the globe and threatens the civilised world will the so-called international community (meaning: America and the European powers) fold their hands and take refuge under the UN Charter or will they go for total obliteration, to use the colourful phrase of Hillary Clinton?

Human rights are fated to face the challenges posed by the enemies of human rights. Violent men of different persuasions haunt all societies.

And when violent men, operating outside civilised norms of a legally elected democratic State, attack the fundamental bases and precepts of human rights how should the state react to protect its values against the dehumanising force that threaten their cherished way of life? Or, in other words, can they defend human rights only with the spirit and charters of human rights without any accompanying violence?

Since violence is the ultimate form of power available to protect life, limb, property and values has the democratic state the right to refrain from using violence on the grounds that state violence will lead to violations of human rights?

Barbarism

The conventional argument is that it is the duty of the democratic state to defend liberal values but without descending to the level of the barbarism of the enemies of human rights. No one can cavil with the nobility of that thought. But what is the reality?

Has the state any other option than to arm itself with the matching power to combat those violators of human rights if the definition of the state amounts to be the ultimate guarantor and protector of human rights? If it acquires matching or superior power how can it avoid violations of human rights in prosecuting a war? Will the use of force, on a higher or lower scale, devalue the worth of the state/societies fighting to protect human rights? The argument jumps at this point from accepting unintentional 'collateral damage' to rejecting intentional acts of violence that may be considered excessive.

It is at this point that the lines get blurred and heavily controversial. Is the systematic and intentional firebombing of Dresden a war crime? Is the mass murder that occurred in the bombing of Hiroshima and Nagasaki a crime against humanity?

If so why weren't the leaders who gave the orders to obliterate Dresden, Nagasaki and Hiroshima tried by the Nuremberg Court? What's the difference between hundreds of thousands killed in concentration camps by the Nazis and the equal number killed from air by the allies? It is true that the Nazis killed by inhuman techniques applied on land and the Allies by dropping bombs from air. But the victims in both instances were all human beings.

So why wasn't Churchill and Truman tried and sentenced? Doesn't this make human rights a naked instrument in the hands of the powerful and the winners? Are the Germans and the Japanese guilty because they lost and are the Allies not guilty because they won and there was no force standing by to accuse or punish them?

Controversial

This leads to the Machiavellian principle inherent in defending human rights: human rights facing challenges from enemies of human rights must necessarily defend its values with violence even if that violence leads to temporary violations of human rights. The greater good of serving the larger interests of human rights of all is worth the violations of the human rights of a limited group of terrorists or enemies of human rights.

Disarming, dismantling and, if necessary, destroying the enemies of human rights operating outside the democratically elected state is a necessary condition for the greater good of peace, stability and preservation of the cherished values of humanity.

The first right to restore human rights should be given to the democratically elected State. This has been recognised in the recent R2P doctrine adopted by the UN in 2005. Military intervention is the last recourse available to international or national forces engaged in restoring lost human rights.

The moment force is mobilised the anti-terrorist forces must be prepared to accept a certain degree of violations of human rights. However careful or concerned the intentions of these forces may be to avoid violations of human rights, there is no way that the counter-terrorist forces can avoid, with the best will in the world, violations of human rights in confrontations with the ruthless and reckless enemies of human rights.

Violence

In this situation the options are limited. The fundamental issue is one of drawing boundaries to limit the degree of acceptable violence. Going by historical experience it may go in the Churchillian or the Trumanesque direction of flattening the enemy as they did in Dresden and Hiroshima. Or it may be confined to the Sri Lankan experience of giving optimum care for the civilians while applying maximum force against the fascist violence of a man-man regime.

The Sri Lankan experience is unique in that it is the only known anti-terror campaign in which the civilians behind the enemy lines are provided free education, free health services, social welfare, pension rights of ex-government servants, subsidised food and other essential goods by the State.

Lankan citizens

The State provides care to those behind the enemy lines because it considers them to be citizens of the Sri Lankan State. It doesn't consider all Tamils to be the enemies of the democratically elected state. The state also believes that it has a duty to bring back those citizens into the democratic mainstream and open up opportunities for them to act within civilised norms abandoning brutal violence to achieve elusive political goals.

So the transgressions of a democratically elected State in violating human rights to protect the long term interest of human rights are not inimical per se to the preservation of human rights. The Sri Lankan experience headed by President Mahinda Rajapaksa has demonstrated beyond doubt the possibilities of combating terrorism and brutal regimes with the minimum of the violations of human rights and maximum gains for democracy which is the path to the protection of human rights.

The military operation to restore human rights began in the East when the Tiger terrorists blocked the supply of water in Mavil Aru to the Muslim and Sinhala communities living downstream. To deny water is one of the most dehumanising violations of human rights. Lt. Gen. Sarath Fonseka, the Army Commander, led the Forces to liberate the entire Eastern coast starting from Mavil Aru until it ended in the peak of Thoppigala.

Transformation

This opened up space for his Commander-in-Chief, President Mahinda Rajapaksa, to restore democracy in the most dramatic fashion. He recruited Pillaiyan, into the democratic mainstream and transformed him into a leader of all communities 'Tamils, Muslims and Sinhalese' in the Eastern Province.

By any standards this is a remarkable achievement. Compare this, for instance, with the deal struck by Ranil Wickremesinghe with Velupillai Prabhakaran. Wickremesinghe handed over the East to Prabhakaran to run it as part of his one-man regime in which the people's right to exercise their democratic rights were never guaranteed.

The Ceasefire Agreement legitimised and enforced only the illegal power of Prabhakaran's war criminals to carry arms and suppress the last vestiges of the easterners' right to live with dignity. The people's right to elect their representatives was replaced by the will of Prabhakaran to persecute and destroy the best in the east.

In fact, one of the biggest fears of the East was that Wickremesinghe would come to power again and sign another shady deal with Prabhakaran and sell their birth rights to the Pol Pot of the Vanni. In the last election he paid dearly for the bogus peace promised in the CFA when the Easterners rejected him as an unreliable guardian of their fundamental rights to live in peace harmony. They accept that Sri Lanka is not a five-star democracy.

All Sri Lankans will agree with that. Nor will they accept Pillayian as the ideal democrat. But they prefer the flawed democracy of President Mahinda Rajapaksa to no democracy at all which is what Wickremesinghe offered when he signed the discredited and dysfunctional deal with Prabhakaran.

However, what should never be forgotten is that democracy and freedoms were not won in the East by chanting the mantras of human rights in seminar circuits and newspaper columns by highly paid kattadiyas hired by the West. No. It was won not because the defence correspondents in various newspapers exposed the military losses and failures.

The anonymous foot soldiers had not even heard of them. Nor did their columns make any difference to them. Wars, in short, were not won or lost by what is printed in the defence columns but by the blood, sweat and tears of the columns of foot soldiers who had fought to restore dignity to the lives of our peoples in the east.

There is a moral to this story: the NGOs and the media pundits are virtually irrelevant to the restoration of democracy and the winning of human rights. In the last analysis, it was the brave soldiers who fought and won the lost rights of the easterners.

The time has come, therefore, to confine all the peace-mudalalis to their barracks "perhaps even tie them to their chairs" and release the soldiers to fight with all the force at their command to protect peace, stability and human rights, including those who are sniping at them from behind.