17 October, 2021

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Road Blocks In IHR Mechanisms: What Implications For Lanka?

By Kumar David

Prof. Kumar David

Prof. Kumar David

There is no arguing, international human rights mechanisms are frequently ineffective or topsy-turvy. If you are convinced Gotabaya, Mahinda and some members of the military should be scrutinised for war crimes, either nothing will happen or, like the mills of god the process will grind excruciatingly slowly. Foreign Minister Mangala, in an about turn for the UNP, is on a whirlwind world cruise attempting to defer tabling of the UNHRC Report. Till recently Friday Forum was hot on human rights and irate about atrocities. Now its premier custodian Jayantha Dhanapala treks to Geneva presumably to persuade the UNHCR not to embarrass the Sirirsena-Ranil Government. Other human rights advocates of yesteryear plead with the international community to go easy on alleged war criminals. Oh frailty thy name is liberalism! Or is this pragmatic realism? The efforts have succeeded; the UNHRC has granted a “one off” six month reprieve.

KDA new book discusses the infirmity of international human rights mechanisms. The summary of the existing structure in the first few chapters is informative and the subsequent discussion of reasons for failure is thought provoking. The proposed “solution” however is naive and wide off the mark; but let me not run too far ahead.

This essay is a review of: The Twilight of Human Rights Law by Eric A Posner, Professor of Law, University of Chicago. Oxford University Press, 2014. Hardcover; 185 pages.

The concern with human rights in general, that is rights of all people, not just one’s own compatriots, is proclaimed in the French Revolution’s Declaration of the Rights of Man and the U.S. Declaration of Independence, but has its roots earlier, in the Enlightenment. The Enlightenment needed an alternative pedestal to religion and the injunctions of the Almighty and found it in the rights and freedoms of man. The institutionalisation of human rights in international treaties post-dates the Second World War and Nazism. The nine treaties which give substance to modern human rights were adopted by the United Nations between 1965 and 2006 and prosecution of violators, except German and Japanese war criminals, commenced in the mid-1990s.

The first three important UN conventions – eliminating racial discrimination (ICERD), protecting civil and political rights (ICCPR) and ensuring economic, social and cultural rights (ICESCR) – were adopted by the General Assembly in 1965-66. Ideological cleavage was visible; while liberal capitalist states rooted for ICCPR the Soviet Union and its allies were impatient with “bourgeois rights” and argued for social and economic rights and pressed the importance of health, education and the right to work via ICESCR. Eventually both treaties were adopted but each camp had its favourite. Debate persists to this day: what are the root causes of Radical Islam, what of China’s impatience with democracy in its pursuit of materialist goals, what about East-West dialogue on the rights-resources trade off.

Between 1979 and 2006 six more, perhaps less controversial covenants, were adopted by the General Assembly; prohibiting discrimination against women (1979), against torture (CAT, 1984), protection of children (1989), protection of migrant workers (1999), prohibition of enforced disappearances (2006) and the rights of disabled persons (2006). Except for the most recent three, the other six others have been ratified by between 153 and 193 countries.

It is obvious that states are blandly ratifying human rights covenants they have no intention of honouring. No, that is not correct; liberal democracies are merely ratifying covenants whose thrust falls, more or less, within their existing laws and customs. They do not anticipate complications but sometimes things misfire; the U.S. discovered to its cost that its assumptions went awry when torture of suspected Islamist jihadists by the CIA came to light after 9-11.

More interesting are authoritarian and pseudo-democratic states; Sri Lanka belongs to the latter category, though people are hopeful things will improve on President Sirisena’s 100-days watch. Why do country’s that don’t take human rights seriously ratify these treaties? The Rajapaksa Government has not ratified the Convention prohibiting forced disappearances, that would have been laughably hypocritical, but Lanka ratified CAT in January 1994 before Chandrika became prime minister or president. We are one up on India which signed CAT in 1997 but has still not ratified it – that is the Lok Sabha has not endorsed the Indian Governments signature.

Author Eric Posner gives reasons why governments deviously sign-up to these treaties; three I find plausible. Semi-democratic and authoritarian countries (call them target states) are pushed by Western countries (but not China) to sign-up and there is pressure from public opinion in donor nations. (“Ugh are we going to sell arms or aid XYZ, which has not even signed CAT or the protocol on women’s rights!”). The second reason is that targets sign-up not expecting any consequences. Many are the targets that have found their mistake; caught with their pants down their vitals singed – Rajapaksas among them. The third reason why targets may sign-up is domestic pressure from NGOs and political organisations. When religious or ethnic problems surface a government can look good in international fora by signing-up, albeit tongue in cheek.

Why do liberal democracies exert pressure on targets to ratify and comply with human tights treaties? Two reasons are that regimes which respect human rights are likely to subscribe to a liberal ethos and lean towards the West in the global balance, and second democratic and human rights respecting states are likely to be stable and less of a headache for the international community. Altruistic concerns are also influential; not the white man’s burden or perceptions of the civilising mission of yesteryear, but latter day concepts of caring for all people whether at home or abroad. Why do individuals in foreign countries make large donations for disaster relief, education, health and orphanages? Why did tens of thousands of whites march in the American Civil Rights movement? The ‘no man is an island separate unto himself” sentiment seems intrinsic to the human psyche.

Have official human rights processes failed?

The author argues in a substantial middle section of the book that compliance with human rights covenants and treaties is dismal; it is a custom more honoured in the breach than the observance. Target states ratify the treaty against torture but callously violate it; they sign-up to ICCPR which inter alia demands freedom of speech but do not hesitate to clamp down on the press and silence the political opposition; the judiciary bends and bums to align with the interests of those in power and it is rarely that an action for rights violation against the state succeeds. Apart from this, ICESCR is virtually unenforceable. South Africa’s Constitutional Court rejected the minimum economic obligations concept saying it depended “on economic and social history of a country, its current circumstances, the prevalence of poverty, availability of land, degree of unemployment and whether an individual lived in an urban or rural environment”. It is obvious that ICESCR only points to “aspirational” rights. There is also the dichotomy that countries like China proclaim that human rights conflict with the ‘right to development’ and compliance obstructs economic growth, threatens political stability and undercuts the fight against poverty.

In 1994 nearly a million Tutsi’s were killed by the Hutu majority in Rwanda but the world stood by looked askance. A new report estimates that there are 14 million slaves in India, 2 million in Pakistan and hundreds of thousands in Nigeria, Ethiopia, Russia, Thailand, Congo and Burma. This number includes forced labour in mines, prostitution, demeaning domestic slavery and people compelled into servitude by ethnicity (Burma) or caste (India). Religious freedom for non-Muslims in Islamic countries is pretty bleak and women’s status in Saudi Arabia, Iran and many African countries is appalling. Hence it is true there are many examples and monstrous cases of failure. A few heads of state (all African) are currently arraigned before the International Criminal Court, but many more should be. Cost is a factor; the Yugoslav tribunal cost $250 million and the tribunal on Rwanda $430 million! A lamppost and thick cord is more to the point, but experience at home in the last six weeks has shown that in the absence of roughshod revolutionary justice stringing up the worst scum is hard work.

A large number of pages are devoted to discussing the difficulty of achieving compatibility between international human rights treaties and domestic mores, codes and laws. Though the book examines only US jurisprudence and the abrasion between the European Court of Human Rights and laws and traditions of individual European nations, I can see more glaring incompatibilities in relation to Islamic states and authoritarian developing countries. The ethos pertaining to women (compulsory dress codes, denial of education and participation in public affairs, gender issues) in Islamic countries, even relatively relaxed ones, is worlds apart from the liberal notion of natural rights underlying the treaties and conventions. These countries, if they sign-on at all, have vastly different interpretations of the right to equality of husband and wife, rights of women in political and public life, and gender issues.

Likewise, authoritarian states assume that tirelessly praising the national leader is the essence of press freedom; don’t we know it! The prohibition of child labour, right to social security, right to culture, right to paid holidays, rights of seasonal workers are but a few of the over 300 clauses contained in the aforementioned nine treaties that have different interpretations from place to place. Making human rights stick by international conventions has been tough.

Trivial pursuit for a conclusion

The book is a nicely written slim volume, easy to read and the first five chapters are very useful. The concluding two are unfortunately a trivial anticlimax; the last one where the author’s ruminates on recommendations is comic. One quote says it all: “It might make more sense for Western donors to help a country build a reliable road system than to force it to abolish torture. Once built, the road may spur economic development, and lead to greater liberty by allowing people to travel to voting booths”. A Chinese Stalinist sage could not have surpassed this banality!

Posner is cluless about the dialectical relationship between domestic struggles, that is people against corrupt and abusive regimes, and indispensable international support from political and human rights aficionados. This is now seared in our minds as it was just such left-right punches, delivered jointly by the people and the international community that sank the Rajapaksas. People like Posner are unable to visualize the groundbreaking significance of the victory that the Sri Lankan people’s stand against incipient dictatorship scored in Geneva in 2014.

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  • 5
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    Prof. Kumar David

    RE: Road Blocks In IHR Mechanisms: What Implications For Lanka?

    Are they roadblocks or Mootal blocks, that get in the way, since Mr. Matripala Sirisena’s Election.

    It looks like the Mootals seem to be coming out of the woodworks now.

    Still many Mootals left.

    Have you considered wring the Common sense Pamphlet? Don’t worry, the White Vans are not working these days.

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    If you are convinced Gotabaya, Mahinda and some members of the military should be scrutinised for war crimes, either nothing will happen or, like the mills of god the process will grind excruciatingly slowly.

    The Assassination of “High Value Targets” (HVT) of the LTTE was key to winning the war.

    It began as “decapitation strikes” i.e. air strike on Tamilchelvam. It continued with with snipers attached to Long Range Reconnaissance Patrols (LRRP) units. In the end HVTs were rounded up and killed. The remaining 15,000 low-to-middle value targets were taken into custody.

    After Sri Lanka’s success with HVT has become International best practice for COIN ops. The USA learned from Gota and the crew.

    Geocoordinate information provided by a former bodyguard of Prabhakaran’s contributed to an accurate Sri Lankan military bombing raid that killed LTTE political spokesman S.P. Tamilchelvan and other LTTE leaders on 2 November 2007, according to a clandestine source with whom a relationship was just beginning.
    https://wikileaks.org/cia-hvt-counterinsurgency/WikiLeaks_Secret_CIA_review_of_HVT_Operations.pdf

    USA extensive drone based assassinations in Paki-Afghanistan theater of ops is based on Sri Lankan experience.

    Now, what can these Gon Demala learn from this? It says if you are an insurgent targeted assassination is now International Best Practice.

    If Gota is guilty of war crime for killing Prabarkaran surrendered or otherwise, so is Barak Obama for killing Osama Bin Laden surrendered or otherwise.

    • 1
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      Vibhushana

      “Now, what can these Gon Demala learn from this? “

      Gon Demala are known as or are called Tamil Mootals, தமுள் முட்டாள், just like the Gon Sinhala are called Sinhala Modayas.

      Mr. Maitripals Sirisena’s election overcame these Tamil Mootals, தமுள் முட்டாள், and Gon Sinhala, Sinhala Modayas but still a quite a lot of them left.

      It is in keeping with the Sri Lankan National IQ of 79.

      http://www.photius.com/rankings/national_iq_scores_country_ranks.html

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    Western Countries are keeping NATO.(I do not know when ISIS like radical are there dismantling NATO is good). But sooner or latter they should drop it down and work on the UN’s strength. Russia should not an excuse for ever. Further, West wishes to turn as another NATO, useful only for them. That is why Rwanda, Sri Lanka like matters happened. They knowingly restricted UN’s usefulness on these matters.

  • 2
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    Kumar

    Why can’t you lecture this to your leftist comarades in the South, espeically in Colombo.

    They are supporting this government which is against ANY INTERNATIONAL investigation.

    This opportunitism.

    They wanted a resolution because Rajapaksa never gave them platform. Now does Maithiripala and Ranil giving them platform.

    Your leftist commarades in Colombo also have hidden agenda.

  • 0
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    Leaving the international mechanism to try one side of the war (as desired by the Tamil political masters) the domestic mechanism should focus on trying the other side. This must be spear headed by the masses on the street.
    Soma

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    David you should admit Sri Lankan Diplomacy is much more advanced than any other country In this planet . They can do many more genocides and war crimes, crimes against children all over the world and easily praised for it by the UN and others. They can easily extract wealth from China, India, Iran Libya and from the west for their lavish living. They provide free education free Health care, Free Housing to an extent and very low cost transport, and food.They brought Russia, USA, china, India, EU and African countries together to their side against the LTTE and Tamils. The future will be the same until another ice age come or big stone from the sky fall on them.

  • 0
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    Law and order, good governance, human rights, judicial independence are lofty ideals. In practice, it can be another. Almost immediately after 9/11 could the American judiciary could ever have ruled that US operations in Guantanamo bay and other locations are within the ambit of its jurisdiction? It did so after many a prisoner was tortured there. War crimes investigations? Oh! No! No! No! It is many moons afterwards that even President Obama, in his election campaign promised the closure of Guantanamo bay. Nearly seven years out of his eight year presidency has passed and was he able to fulfill his promises? Practical realities forbid otherwise.

    The bastions of war crime investigation fellows want to see the victors of the war in 2009 punished hook or by crook. Is there a similar cry for the killers of Wijeweera who died while on captivity. What about the information extraction processes in I sections of many a military camp in 1980’s, where those who did not co-operate to the satisfaction of the authorities were made disabled and killed through a process of starvation? Human rights, War Crime Investigations, pooh!. Even the present bell boys don’t talk of it. How many times did the Police in 1988-1990 came home and told the inmates that they could hold the seven day alms giving the next day for those who disappeared six days ago? Why are those atrocities now forgotten? UNFORTUNATELY THERE IS NO DIASPORA FOR THEM TO SAY THAT FOR INSTANCE THE BATALANDA REPORT IS INSUFFICIENT AND IT NEEDS SOME UNHCR INVESTIGATION.

    It is unfortunate that might is right. Once a regime that looks more pro Chinese is dismantled and a regime that can be taken as pro-western although they may declare that they are strictly non-aligned is in place, the international human rights cry will be in the back burner. The TNA & company which mustered the North and East votes will have to do some explaining to the small number of fellows who will rake the issue.

    I am not the least surprised if the following takes place:

    (1) Negotiate with International authorities that a local investigation and trials will take place and request them to hand-over what ever evidence they have.

    (2) Conduct a war crimes trial and convict the “offenders” giving pride of place to channel 4 etc..

    (3) Acquit many of the big wigs on Appeal discrediting some of the evidence and points of law.

    (4) Close of chapter.

    The outcome will be a mixture of the Krishanthi Cumaraswamy trial and the Bindunuwewa Trial.

  • 0
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    Vibushana.

    Was poison gas used in the last stages of the War?

  • 0
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    I wonder why Mangala and the present government are so keen to have the UNHRC report deferred. Surely the report is likely to find the Rajapaksa regime and not the Sirisena government guilty of war crimes.

    Mangala is probably worried that the report’s findings may implicate some of the military men who are in high positions now and the effect of that on the Sinhala nationalists who may cause trouble for the present government so close to an election.

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