Focus

The Commonwealth, Britain and intervening in Sri Lanka

Continuous demonstrations and mass rallies are being held in many major Western cities by members of the Tamil diaspora urging  that the international community should intervene on a humanitarian basis in Sri Lanka thereby ending the war and saving entrapped civilians.

The concept of Responsibility to Protect (R2P) is being cited and the international community is asked to invoke that principle and act.

It appears that the most positive response so far to these requests has been in Britain, our former colonial master.

Many Tamils opine that Britain is at fault for their current predicament for unifying “Ceylon” in a single administration and then granting independence without adequate safeguards to protect the minorities thereby institutionalising majority hegemony.

From Foreign Secretary David Miliband right down to Indian origin MP Keith Vaz several political leaders have expressed views openly on Sri Lanka. British newspapers have also written editorials.

That these are not to the liking of the establishment in Colombo is evident judging by the hot air being blown in influential circles about “Rule Britannia.” Even avowed Anglophiles are now confessing with great angst that they are turning into Anglophobes now.

Britain related controversy

Adding to this Britain related controversy are two interesting factors.

One is the  viewpoint that Britain should invoke R2P and initiate humanitarian intervention in Sri Lanka. The other is the  appeal made by the Commonwealth Human Rights Initiative and Human Rights Watch that the Commonwealth should use its influence and bring about a ceasefire in Sri Lanka.

A strong case has been made  for British intervention by a leading Tamil academic, Prof. M. Sornarajah. In responding to a request by some British Tamils , Prof. Sornarajah has expressed an  opinion  that presents lucid arguments about the role Britain could play.

Prof. Sornarajah who obtained an upper first in Law at the Colombo University went on to lecture there and later relocated to the Singapore National University. He was also a member of the experts’ panel convened by the LTTE to draft political proposals during the ceasefire.

As far as the CHRI is concerned the livewire behind it is Maya Daruwallah, the daughter of Field Marshall Sam Manekshaw, the former Indian Army Commander under whose tenure, Bangladesh was liberated.

Ms. Daruwallah is quite knowledgeable about Sri Lanka having lived and worked here for several years. She was attached to the Law and Society Trust in Colombo.

Opinion expressed

Firstly, the opinion expressed by Prof. Sornarajah is reproduced —

“I have been asked by some British citizens of Tamil origin to give an opinion on the status of the British Government to intervene in the present humanitarian crisis caused in Sri Lanka by the shelling of safety zones declared by the Government of Sri Lanka, by the Sri Lanka armed forces and the indiscriminate bombing of Tamil civilians.

This shelling, as well as other indiscriminate targeting of objects, has resulted in massive civilian casualties. The extent of the duty to protect the civilians caught up in the hostilities and the competence of the British Government to provide such protection through intervention are the subjects of this opinion...

The British Government has not traditionally subscribed to the notion that a state may intervene in order to prevent humanitarian catastrophes in other states. But, the British Government reversed this policy in 1998 just before the NATO intervention in Kosovo and participated in the NATO intervention. A lachrymose Mr. Blair, then Prime Minister, in justifying this change of policy, apologised for not having made a similar intervention in Rwanda to prevent the massacres that took place in that country.

After the NATO intervention, the Secretary of State for Defence, justifying the intervention, stated that “in international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken” (Statement reproduced at 1999, Vol.70, British Yearbook of International Law, p.586).

The next year, the Secretary of State for Foreign and Commonwealth Affairs made a statement (July 19,  2002) stating that “no one can claim any longer that massive violation of humanitarian law or crimes against humanity fall solely within a state’s domestic jurisdiction.”

To guide intervention

Mr. Robin Cook, the then Secretary at the FCO indicated that Britain had submitted clear principles to the United Nations to guide intervention by the international community. There were six principles in the guidelines. Among the principles he stated, was that “when faced with overwhelming humanitarian catastrophe, which a government has shown it is unwilling or unable to prevent or is actively promoting, the international community should intervene.” At the present moment, there is a humanitarian catastrophe entirely caused by the Government of Sri Lanka. Britain and the international community have a duty to act to prevent the loss of lives as a result of the actions of the Sri Lankan Government.

There is nothing to indicate that the policy of the British Government has changed since this time. It must be taken that since then the UK policy has been to accept the right of humanitarian intervention, even through forcible means, to put an end to internal civilian suffering caused by a state intent on massacring a part of its population identifiable on the basis of race, language or religion.

There are obvious objections to forcible unilateral humanitarian intervention. The dilemma is that the doctrine could be abused by strong states which would use it to influence political courses in states but, at the same time, it becomes necessary that states not stand by when harrowing incidents of genocidal killings take place. In Bangladesh, Cambodia and Uganda, unilateral interventions took place which the world condoned because the killings in Bangladesh by the Pakistani forces, the massacres of Pol Pot in Cambodia and the ruthlessness of Idi Amin in Uganda had to be brought to an end.

Forcible interventions

The forcible interventions in these incidents by India, Vietnam and Tanzania were silently applauded by the international community. None of these governments sought to justify their actions on the basis of humanitarian intervention. The NATO intervention in Kosovo, however, was justified by the UK and other NATO members on the basis of a principle of humanitarian intervention.

The intervention in Kosovo by NATO was necessary because two members of the United Nations Security Council (China and Russia) vetoed United Nations action. Such a veto is to be expected whenever internal massacres are discussed, as both China and Russia have minority problems in Chechnya and Tibet which they do not want to hold out to international scrutiny. Neither do they want to contemplate the future possibility of an intervention to deal with such issues. Collective exercise of forcible humanitarian intervention under United Nations auspices, therefore, remains remote.

It is in the light of the dilemma presented that the international community came up with the idea of the duty to protect. The duty to protect was promoted largely by Canada and Australia. Two former foreign ministers of these two states, Mr. Lloyd Axworthy (Canada) and Mr. Gareth Evans (Australia) were instrumental in pushing the idea. A commission set up by the Canadian Government issued a report on the scope of this right. The idea was to ensure that, whatever the international law position on the principle of humanitarian intervention is, there is a right recognised by the international community to provide assistance to a civilian people who are caught up in the hostilities between the armed forces and insurgents.

Responsibility to Protect

The Responsibility to Protect is now well recognised in international law. It results from an international instrument which the General Assembly of the United Nations approved in 2005 at the World Summit. The Responsibility to Protect is a duty every state owes its minorities. The responsibility requires that the minority not be subjected to atrocities involving genocide or crimes against humanity like torture.

Where this duty is violated by the state, it is incumbent on other members of the international community to intervene and ensure that the persecuted group is protected. Such intervention is legitimate in international law. It is opposed only by a few states like China, Russia, Sudan and Zimbabwe, fellow travelers with the Government of Sri Lanka and persistent violators of the rights of their own citizens.

It is the duty of the international community to ensure that the devices that it has created are meaningful. In the case of the British Government, its duty is clear in this regard. It, now, subscribes to a principle of humanitarian intervention, which justifies even the use of unilateral armed force in order to achieve humanitarian ends, such as the protection of the civilians caught up in the hostilities in the north of Sri Lanka. Failing the use of this doctrine, it has the duty to ensure their protection as a result of the new doctrine relating to the Responsibility to Protect.

In the case of Britain, its exercise of this duty arises not from its membership of the international community or from a moral duty alone. It bears a historical responsibility in the problem that affects Sri Lanka. The distinguished British political scientist, Bertram Hughes Farmer detailed in his book, Ceylon: A Divided Nation (Institute of Race Relations, Oxford, 1963), nearly half a century ago, how the British had brought under one rule an island divided on the basis of ethnicity into three kingdoms for the sake of their administrative convenience.

A single government

They left behind the same system of a single government for an island that had contained three separate kingdoms. He predicted that the constitutional arrangement that the British created on granting independence to Sri Lanka had to break down as it did not give the minorities in Sri Lanka sufficient protection. Much of the blame can be placed at the doors of Britain. Events unfolded exactly as Farmer had predicted.

The unitary government of Sri Lanka came under Sinhala chauvinists, who outdid each other in their racial and religious fanaticism against the minorities, declaring Sinhala the only official language and the peaceful religion of Gautama Buddha, the renouncer of his own kingdom, the state religion. They adopted a national flag of violence, which symbolised the creation myth of the Sinhala race, a lion holding a sword, symbolising violence against those who opposed Sinhala supremacy.

All minorities were excluded from participation in government and as the head of the armed forces declared without being contradicted, Sri Lanka belongs to the Sinhalese and others live in it only upon tolerance. Several pogroms have been unleashed against the Tamils, resulting in a flood of refugees accounting for a large Tamil diaspora in the capitals of the world.

Unfortunately, this was a result that the Sinhala chauvinists did not anticipate. While they kept their own people mired in a blinkered existence of hatred, the minorities in Sri Lanka have been well received in the capitals of the West where they have prospered and grown in influence.

Terror unleashed on the Tamils

In the light of the terror that has been unleashed on the Tamils by successive governments, a right to self-determination has arisen in them. The modern scope of that right has been discussed authoritatively by the Canadian Supreme Court in Attorney General’s Reference on the Quebec Secession (1998) and by the Badinter Commission set up by the European Union to consider the issues relating to Kosovo and Yugoslavia.

Essentially, such a right is held in abeyance where the right to equality is recognised in a plural state held in good balance through its political structure, as it is in Canada, where four successive prime ministers were French Canadians. But, whereas in Sri Lanka, there is not only the persistent violation of the right to equality of the Tamils but a course of violence unleashed by government forces on the civilian population, a right of secession arises in them.

 Such a right can be asserted through violence. It is inapposite to describe such violence as involving terrorism. Right down history from the American War of Independence to the struggle of Mandela against apartheid, violence has been used for the assertion of lawful rights. Though it is obviously preferable that, as in the case of Mahatma Gandhi, peaceful methods should be used in the pursuit of rights, such peaceful methods of protest used by early Tamil leaders in Sri Lanka failed miserably. It is only after the peaceful methods of protest had failed that violent means were adopted by Tamil youth. It is evident that the Tamil diaspora supports their struggle.

Hostilities between contending forces

The present situation arises because of the hostilities between the two contending forces. The Tamil Tigers are fighting a war of secession in a lawful manner as combatants wearing recognisable uniforms. The civilians have sought refuge in zones designated as safe zones by the Government of Sri Lanka, but are still being massacred by government troops. Those who have escaped the war zone are kept in detention camps in reportedly miserable conditions of captivity for the simple reason that they are Tamils.

In this context, a clear duty of protection arises and this duty, for reasons explained, is the greater in the case of the British Government. It is a duty enhanced by the fact that the relatives of many of its citizens are caught up in the war zone. Though the British government owes a special historical responsibility, this responsibility attaches to the whole international community. The NATO members in particular, having set a precedent in Kosovo, have, at least, the duty to take the lesser route of intervening to protect the Tamil civilians.

Today, we try the henchman of Pol Pot. Fujimori of Peru has just been convicted. Tomorrow, the international criminals in the present Government of Sri Lanka responsible for the atrocities against the Tamils in Sri Lanka will surely be tried for their callous massacre of thousands of Tamil civilians. But, it is today that is relevant. It is today that the hundreds of thousands of Tamil civilian lives under the threat of massacre by the Sri Lankan Government must be saved.

— Prof. M. Sornarajah.”

Letter sent jointly and individually

The following is the official press release issued by the Commonwealth Human Rights Initiative and HRW on the letter sent jointly and individually to the Ministerial Action Group of the Commonwealth —

The Commonwealth and its members should use their combined diplomatic influence to press the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE) to cease attacks that violate the laws of war and end the humanitarian crisis in Sri Lanka’s northern Wanni region, the Commonwealth Human Rights Initiative (CHRI) and Human Rights Watch said today in a letter to the Commonwealth Ministerial Action Group (CMAG). A two-day holiday pause in military operations was not long enough to address the desperate situation of trapped civilians.

Fighting reportedly has resumed in the tiny government-declared ‘no-fire zone’ still in the control of LTTE forces, where the approximately 100,000 civilians remaining are at grave risk. LTTE forces have prevented civilians from leaving the area, while government forces have repeatedly and indiscriminately shelled the no-fire zone. More than 3,000 civilians have reportedly been killed and many more wounded during the fighting since January.

“With the United Nations warning that there could be a potential ‘bloodbath,’ the CMAG needs to assert itself to protect the civilians trapped in the fighting in a member country,” said Maja Daruwalla, executive director of CHRI. “It should not stay silent during this mounting tragedy.”

Violations denied

Both the Sri Lankan government and the LTTE deny they are violating the laws of war. However, there is credible information that the LTTE is preventing civilians from leaving the conflict area and shooting at those that try to escape. Displaced persons who have managed to flee the fighting have been placed in detention camps by the Sri Lankan Government, where they are denied freedom of movement. The government has said that it will improve access to the camps by relatives and allow some to leave after screening for LTTE combatants, but to date only a few hundred elderly have been allowed to leave. There are allegations that an unknown number of people with alleged LTTE ties have been taken into government custody, leading to fears of enforced disappearances.

The Sri Lankan Government has refused to allow independent observers and journalists into conflict zones so that there is a lack of accurate and timely information about the situation of the trapped civilians. It has also barred most humanitarian agencies from the conflict area in northern Sri Lanka, citing security concerns, leading to severe shortfalls in humanitarian assistance. There have been repeated allegations of threats and intimidation against Sri Lankan journalists and human rights workers.

“The Commonwealth harms itself when it stays silent during a crisis in a member state,” said Brad Adams, Asia Director at Human Rights Watch. “Abuses by the Tamil Tigers should not deter it from pressing the Sri Lankan government to uphold the Commonwealth’s fundamental principles.”

Pledge to promote human rights

In the Harare Commonwealth Declaration, 1991, Commonwealth Heads of Government pledged to protect and promote fundamental human rights and to support “the United Nations and other international institutions in the world’s search for peace.”

Calling upon CMAG to protect the fundamental principles of the Commonwealth, CHRI and Human Rights Watch urged it to:

Seek assurances that civilians are given the highest protections, and that international humanitarian law is being complied with in full.

Call upon the Sri Lankan Government to cease attacks that violate the laws of war, including artillery bombardment and aerial bombing that does not discriminate between military targets and civilians, or that causes expected harm to civilians and civilian objects disproportionate to the anticipated military gain. Violations of the laws of war by the LTTE do not justify attacks by government security forces in violation of the law.

Call upon the LTTE to stop using civilians as “human shields,” take all feasible steps to avoid placing military targets near civilians, stop preventing civilians from leaving areas under its control, respect and facilitate the right to freedom of movement of civilians, including their right to move to government-controlled territory for safety, and end all deliberate attacks on civilians, such as those seeking to flee LTTE-controlled areas.

State its concern for the trapped civilians, call upon both parties to facilitate the immediate creation of humanitarian corridors to allow trapped civilians to escape and offer neutral assistance to ensure safe evacuation of civilians, as well as to provide aid for humanitarian camps for relocated civilians.

UN Guiding Principles

Consistent with the UN Guiding Principles on Internal Displacement, ensure that camps for displaced persons respect the basic rights of residents. The camps should be under civilian authority, residents should have the freedom of movement due to all Sri Lankan citizens, and impartial humanitarian agencies should have access to the centers without unnecessary restrictions.

Call upon the Sri Lankan Government to allow independent observers, including journalists, access to conflict zones so that accurate and timely information about the situation of civilians in such areas is publicly available.

Call upon the government to lift immediately the September 2008 order barring humanitarian agencies from the conflict area in northern Sri Lanka and allow humanitarian agencies to return to assist at-risk individuals and reach all civilians in need. Restrictions on relief should be made on a case-by-case basis and only when there is a specific and justifiable security reason for the restriction. Refusals for valid security reasons should only be for as long as necessary and should not block legitimate humanitarian assistance.

Call upon the government to ensure that Non Governmental Organisations (NGOs) are able to perform their work without arbitrary government interference. Regulation of NGO activities should comply with international standards, be transparent, and follow clearly defined procedures. Registration should ultimately facilitate the work of NGOs and should neither disrupt legitimate NGO activities nor put NGO workers at risk.

Strongly urge all CMAG members to act on the crisis in Sri Lanka collectively as a positive way to engage the crisis and such situations in the future, while also giving full adherence to the Harare Declaration among the Commonwealth’s membership.