By Laksiri Fernando –

Dr. Laksiri Fernando

In a short article written to the Colombo Telegraph (1 July 2012) titled “The Crisis Within The Human Rights Movement,” Sajeeva Samaranayake has raised some important questions regarding the approaches of the human rights movements today which implicitly resonate some of the vexed issues pertaining to the violations and accountability in Sri Lanka.

The general problem that he poses is the following.

“Most of us are working for human rights – on different themes, in different work settings and in different countries. But we would like to think we have a common objective, and it would be good if this were so. The reality is that we are at cross purposes and sometimes working against our stated objectives.”

If we take human rights as a movement or ‘human rights movement/s’ as our main focus, like any other movement, obviously it is subject to many cross currents and cross purposes. As many commentators to Samaranayake’s article (13 in number) have rightfully point out, there can be considerable gap/s between what some preach and what they actually practice, whether those are powerful governments or nongovernmental organizations. Sometimes we brand this behaviour as ‘hypocrisy,’ ‘double standards’ or attribute them to ‘dollar greed.’ The central question however is whether we need to ‘throw the baby with the bath water,’ even if these accusations are completely correct.

Objectives of Human Rights

What is this baby? Human rights are fundamental requirements of human beings, particularly in modern times, whether they are economic, social and cultural rights or civil and political rights. There is an increasing understanding that all human rights are interrelated and interdependent and one set of rights (i.e. in the economic and social sphere) cannot be achieved without the other set of rights (i.e. in the political and civil sphere) or vice versa. The ideological controversy that existed particularly during the cold war period has now largely disappeared or disappearing. Even the old classification between the two sets today is mostly outmoded.

Human beings have two basic drives; one for physical survival and the other for mental dignity. There are economic and social needs deriving from the drive for survival; and civil and cultural needs from the drive for dignity. These drives and needs have existed from almost the beginning of humankind and their complexity today requires codification of them in legal terms, national and international. In addition, humans require today political rights to safeguards all the other rights or otherwise those could be denied or jeopardize by the State. One may even argue that all humans have a third drive for power or participation and political rights today are related to that drive of the human beings.

Human rights philosophy and codification are also based on the concept of common humanity. This means that all human beings are of common species, Homo sapiens, with common drives and common needs irrespective of ethnic, colour, physical, social or cultural differences. Human rights also acknowledge the ethnic, cultural or language differences and recognize the related rights through cultural, civil and political rights. They are particularly related to human dignity and the exercise of proper political participation.

The above are some of the basic concepts of human rights and if we understand them properly, in my opinion, there cannot be much confusion about the common objective of human rights. I state them, at least briefly, for the benefit of the general reader and not as response to Samaranayake, except that he also seems to be rather weary about what he calls “ideals and concepts – fortified by the already massive and ever growing edifice of human rights conventions, rules and guidelines.” He further says, “This seems to have every answer to every human problem,” which is also not the case.

The difference between me and him perhaps is that I consider human rights to be ‘fundamental human requirements and needs’ and he appears to consider them as some ‘ideals and concepts’ alone. Giving the benefit of the doubt, perhaps he refers to the others rather than to himself in saying so.

Objectives of Human Rights Movements  

There can undoubtedly be a gap between the objectives of human rights and the objectives of the human rights movements. This reminds me of what happened to the socialist movement at one time or at all the times. As Eduard Bernstein (1850-1932) once clearly declared “the socialist movement is everything, while the goal of socialism is nothing.” It is possible that the same predicament can happen to the human rights movements losing the grip of the final objective/s while focusing on the methods or the means that were devised to achieve them. But to me human rights movements have not come to that stage while there are similar symptoms on the part of some activists or organizations.

More concretely, Samaranayake has highlighted two approaches in the human rights movement that confronts each other in respect of human rights violations, in his opinion. One can be called the ‘penal approach’ to human rights violations and the other ‘corrective approach’ to human rights. They are in fact very much similar to the approaches that we have in the general criminal justice system. He seems to be having some misgivings, however, about the first approach while emphasising the merit of the second without giving much details or explanations. His whole article is 467 words, which raises many questions without actually answering them. But his preferences are loud and clear.  The following are some of his statements, critical of the ‘penal approach.’

“Human rights lobby today has no qualms about using the International Criminal Court at global level and local criminal courts at national level to respond to human rights violations.”

“The criminal process itself – with its long delays and miscarriages of justice is among the prime violators of human rights all over the world.”

“This violator is cleverly disguised as our savior when it comes to human rights violations – and institutions like the ICC it is assumed will be immune from the usual political power dynamics that plague criminal justice nationally.”

To him “there is no doubt that the criminal law has a role to play in any society.” “But within crisis ridden divided 3^rd world societies,” according to him “its potential value seems to be grossly exaggerated.” He may have a point to say that ‘long delays’ and at times ‘miscarriage of justice’ could hamper justice to the victims of human rights violations or general crimes. But rather than calling for a more effective and efficient criminal justice system, to maintain rule of law and law and order, to equate the system as ‘another violator’ is again like throwing the baby with the bath water.

Samaranayake has not clearly explained the other approach, what I have called the ‘corrective approach,’ to human rights violations. But his preference for a ‘different approach’ is very clear from the following statement.

“Other human rights activists who are not so enamoured with the criminal process and who seek a deeper, spiritual, cultural and social approach which seeks to transform attitudes that lie at the root of all problems are becoming increasingly marginalized from this new battlefield as a neo Victorian morality play is being staged with great passion by the protagonists on either side – the accusers and defenders.”

He has not explained at all some of the key concepts in his own statement such as the ‘deeper, spiritual, cultural and social.’ They could give different meanings to different people. Perhaps he is not so clear or vague what he is talking about other than resisting to what he perceives as an erroneous approach to human rights by the protagonists with ‘a neo Victorian morality.’

In human rights speak; it is always better to be clear, precise and open (if possible without unnecessary jargon!). His concerns about the ICC and ‘national criminal courts’ have relevance to Sri Lanka today in the context of alleged past violations and the accountability issues.

Questions for Sri Lanka

Samaranayake has raised four questions as his last paragraph. The following are my brief answers to them one by one within my competence and conscience.

1. Is this new paradigm which also seems to deny human rights a broader role outside the criminal court simply a perpetuation of old categorizations that imprison us?

There is no apparent paradigm-change in the human rights movement/s in my observation although the international organizations at present make a particular effort to bring the offenders of the alleged war crimes in Sri Lanka before a criminal court. Among the main actors, except the International Crisis Group, the main approaches of the Amnesty International or the Human Rights Watch and many others have always been ‘name and shame’ and bringing the perpetrators into criminal justice.

No one could deny the gravity of human rights violations that have taken place in Sri Lanka at the last stages of the war and even before as alleged or revealed by much information now available. Only imbalance that I could see is the less emphasis given to the LTTE atrocities compared to the State violations. This is partly a result of the outright denial of the government that any violation took place and/or its failure to investigate them through independent tribunals.

The broader role for human rights or the ‘corrective approach’ is always there for human rights promotion and prevention of future violations but it is not a substitute for criminal procedures when gross violations take place.       

2. Should we offer help for tomorrow rather than punishment for yesterday?

Simply said, it should be both and not rather than the other. Especially in justice to the victims, both of the State and LTTE atrocities, the truth should be known as much as possible. Their pain and anguish should be recognized. The victims should be compensated. Inadvertent perpetrators can be forgiven if they admit the mistakes and genuinely repent, but the willful offenders should be punished.

Broader approach for the future to change attitudes and educate also should be employed. But it does not seem that the government is doing that. Two examples can be given. (1) The Friday Forum has offered to the IGP its expertise service on human rights training but it is not heeded. (2) The rehabilitation programs for the past LTTE cadres did not incorporate a human rights component.

3. Or do we think, in the idealistic, comprehensive and fence sitting manner of the typical UN official that we can have both?

Yes, simply said yes. It is not ideal but practical, comprehensive and fence setting.

4. Most importantly what should our role and position be as moderate but committed and concerned citizens?

We should ask the government to investigate through an independent tribunal all the alleged (LLRC, UN and other) atrocities and violations during the last stages of the war. We should ask the government to launch credible human rights education for the armed forces and the police to avert future violations.

Conclusion  

Time is running out for the government on ‘war crimes’ issue. If credible investigations are not held in the coming future, there is the possibility of the international community and/or the Diaspora even dragging some of the key government leaders into the international criminal justice system.

Under Article 15 of the Rome Statute of the International Criminal Court, “The Prosecutor may initiate investigations proprio moto on the basis of information on crimes within the jurisdiction of the Court,” whether a particular State is party to the ICC or not.