The brutal conclusion to the quarter century long conflict between the Sri Lankan government and the LTTE has left a quarter of a million refugees and between 7,000-20,000 civilian dead in its wake. That the death toll varies to such a degree is testament to the Sri Lankan government’s abject failure to allow international aid agencies and the media access to the conflict zone, almost certainly for fear that to do so would hinder it in its zeal to finish the job.
Though reprehensible, the failure of the Sri Lankan government in this matter is not surprising, and though not necessarily forgivable, is at least understandable. The conflict between the government and the LTTE cost Sri Lanka the lives of tens of thousands of its citizens and several billion dollars of economic disruption. That the government would always seize the chance to terminate the conflict with both hands was wholly predictable.
The real failure in this saga was on the part of the United Nations to press the Sri Lankan government harder to allow the aid agencies and the press into the conflict zone, who together would almost certainly have succeeded in focusing the Sri Lankan government’s mind on the importance of minimising the collatoral civilian damage of the conflict.
Almost as bad has been the resolution passed by the ironically named United Nations Human Rights Council (UNHRC) in response to the conclusion of hostilities. Far from highlighting the civilian cost of the conflict, or criticising the Sri Lankan government’s exclusionary policy re international organisations, the resolution “Welcomes the conclusion of hostilities and the liberation by the Government of Sri Lanka of tens of thousands of its citizens that were kept by the LTTE against their will as hostages, as well as the efforts by the Government to ensure safety and security for all Sri Lankans and bringing permanent peace to the country.”
The roll call of nations that voted for this resolution included some with what could, at best, be called dubious human rights records, including China, Egypt, Russia and Saudi Arabia amongst others.
Casual observers of the UN may well ask how an organisation that pledges almost in the first sentence of its charter “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”, can fail in this task quite as often as it does.
The truth is that at the heart of this organisation is a fundamental and perhaps even irreconcilable contradiction. On the one hand, the UN pledges to uphold human rights, but on the other to be a truly universal organisation that represents all nations and recognises the “sovereign equality of all its Members”. Unfortunately, the UN is and can only be as effective as its members wish to make it, and there are very many members of the UN, including two of the five permanent members of the Security Council, who do not possess governments committed to the maintenance of human rights in any meaningful sense of the word.
The composition of the Human Rights Council is a case in point. Predominantly made up of African and Middle Eastern countries with decidedly dubious track records on human rights protection, the UNHRC has been accused of “partisan posturing and regional divides” and failing to get on with actual protecting ordinary people from abuse by none other than UN Secretary-General Ban Ki-moon himself. Mr Ban is one of many to have criticised UNHRC members for voting more often with a view to protecting members’ interests than protecting human rights. The UNHRC was established in 2006 to replace the ineffectual and discredited Commission on Human Rights, though quite how Member States believed a change in the name would effect a change in conduct is hard to fathom. According to Freedom House, just 22 of the UNHRC’s 47 members can be called free countries.
The sad truth is that many UN Member States are staunchly opposed to the UN involving itself in human rights work that might highlight failings by a Member government because they fear that to do so would lead to greater pressure on them to show greater restraint toward their own dissident minorities. The problem of what to do to improve the situation seems almost insurmountable. Does the UN want to guarantee human rights, or to be a universally representative organisation that guarantees the soveriegn equality of all its members? It seemingly cannot do both.
One of the biggest problems confronting even those countries that are serious about human rights is the inevitability of power politics in any situation that involves one country putting pressure on another. This was historically the case during the Cold War, when Western countries, and in particular the United States, gave succour to often brutal dictatorships in order to prevent them from falling under the Soviet sphere of influence. Many have criticised India’s failure to do more in Sri Lanka in recent weeks, and New Delhi’s comparative silence might seem all the more surprising given the large number of ethnically Tamil Indians who live in the south of the country.
However, even putting aside recollections of India’s disastrous intervention in 1983, what also needs to be considered is the role of China in the region. China has been credited with supplying the Sri Lankan government with the arms it required to defeat the Tamil insurgency, and China’s desire to establish itself as a strategic entitity in the Indian Ocean is currently being facilitated by the construction of a $1 billion port in the Sri Lankan town of Hambantota. India cannot afford to push the Sri Lankan government too hard for fear of Sri Lanka turning away from India to China for strategic solidarity. It was China, aided by Russia, that blocked discussion of the Sri Lankan situation in the UN Security Council.
.jpg "President Hu Jintao and President Omar al-Bashir")
China, indeed, is the principle obstacle to the furtherance of human rights not just in Sri Lanka, but globally. It operates a strict policy of what could be termed “live and let buy”, trading with any and all of the world’s nations, asking no questions of their commitment to human rights, and doing everything it possibly can to prevent others from doing so. China’s relations with Sudan are a case in point. Wanted by the International Criminal Court for alleged crimes against humanity President al-Bashir may be, but that does not deter China from buying almost 80 per cent of Sudan’s exports. Without China’s willingness to provide the Sudanese regime with this economic prop, and without its obstructing the efforts of the Security Council to pass stronger resolutions on the Sudanese situation, considerable improvements in Sudan’s human rights record, if not outright regime change, might already have been effected.
Ultimately, where human rights are concerned, the economic strength of countries wishing either to effect or obstruct progress is what really counts. “Money talks” as the saying goes. It is no coincidence that the most frequently used weapon in the international community’s human rights armoury is the economic sanction.
This is why the West must seize the chance to effect meaningful change to the way the international community approaches the issue of human rights whilst it still can. With a combined GDP of more than $33 billion, the EU and the US alone account for more than half of the global economy of $62.3 trillion. Likewise, the EU and US together constitute more than 60 per cent of Sri Lanka’s export market. However, the seemingly unstoppable economic rise of China is reducing that ratio in both cases.
It can only be hoped that as China’s middle class increases in size, so in turn they will become less and less tolerant of their country’s human rights policy, both at home and abroad. Until then, however, those countries that are serious about human rights need to establish a human rights council that is separate from the United Nations, and that is able and willing to not only call human rights abuse by its name, but to authorise genuinely effective action as and when such abuse takes place. There is no pretending that this organisation would be a silver bullet. Sudan is one case in point, and North Korea another, that if a regime truly wishes to isolate itself and ruin the country’s economy in the process, then it will not shirk from doing so. So long as such regimes can find at least one strong ally such as China, they can very often hang on.
However, there are a great many other countries with regimes that are not quite so cavalier, and who may well respond to real pressure if effectively applied. At present, the approach of countries with a commitment to the furtherance of human rights is nowhere near coherant enough, and is still dominated by power politics. These countries still seek to present a united front through the vehicle of the UN, as the world body with the most international legitimacy. However, as has been demonstrated in Sri Lanka, the UN is all too often hamstringed by the truculence of members who do not share that commitment to human rights.
Countries that do hold that commitment should be willing to take a radical step and commit themselves to a human rights council that would put the maintenance of human rights above partisan considerations and whose decisions would be binding on all Member States. The Universal Declaration on Human Rights cannot continue to be an aspirational document devoid of any enforcement provisions. It should serve as the basis for this human rights council, and if its articles are deemed by the council to have been breeched by any country, then that should compel member states to take the action recommended by the council.
A government must exist solely for the purpose of serving the best interests of its people. That his fundamental human rights are protected is surely the highest earthly interest any man can have. Those governments that consistently fail to serve the best interests of their people must be made to pay the consequences. If the United Nations remains as the principle body through which nations with a respect for human rights seek to exert themselves, then that simply will not happen.
The extradition of four men wanted by the Rwandan High Court was blocked today by two British judges on the grounds there is a “real risk” they will suffer a “flagrant denial of justice”.
The men, Dr Vincent Bajinya, Emmanuel Nteziryayo, Charles Munyaneza and Celestin Ugirashebuj are wanted on charges of Mass Murder committed during the 1994 Rwandan Genocide, in which an estimated 800,000 Tutsis and Hutu “sympathisers” were massacred in 100 days.
The concerns aired by the judges are not unreasonable, particularly since Rwanda is currently ruled by Paul Kagame, the Tutsi leader of the Rwandan Patriotic Front that eventually overthrew the genocidal Hutu regime. The right of every human being to a fair trial, as proclaimed by Article 10 of the Universal Declaration of Human Rights means they should not go.
However, it is a shocking indictment of the international criminal justice system that no other court exists in which they can be tried, meaning that these men have effectively been granted impunity for the forseable future. As things stand at present, only if the Rwandan government seeks, and obtains, an order from the International Court of Justice (ICJ) that the United Kingdom hand over the men will they stand trial in Rwanda. This does not, however, solve the problem that that trial probably would not be fair.
There has also been mention of an Early Day Motion being submitted to the British Parliament calling for a change in legislation that would allow for the men to be tried in the UK. This idea has actually been put forward by one of the four, Vincent Bajinya. However, the chances of this succeeding are slim and the suitability of such a course of action is anyway highly questionable.
The obvious alternative court in which to try the men would seem to be the UN mandated International Criminal Tribunal for Rwanda (ICTR), but the ICTR’s jurisdiction only extends to high level figures in the genocide. Lower level figures such as the four men in question are tried by the national courts. Besides which, the ICTR has only managed to sentence 39 individuals to date, and it is due to wind up its work in 2010, though this date may be extended. It could reasonably be argued that perhaps the authority of the ICTR should be extended to cover lower level criminals, but that is not the case at present. Besides which, the ICTR is a very specific body with a very specific geographical and temporal mandate. There needs to be a permanent body with a mandate to try the most serious crimes no matter where and when they were committed. That body is, or rather should be, the International Criminal Court (ICC) at the Hague.
Unfortunately the ICC is hamstringed in a number of different ways. The first problem is the so-called rule of complimentarity, which stipulates that the ICC can exercise jurisdiction over a serious international crime only if no state is willing and able to prosecute the crime itself. The second problem for the ICC is that its jurisdiction only extends to those citizens of the 108 countries that have signed up to the court or to individuals whose crimes were committed on the territory of a member state. The only other ways by which the ICC can derive the jurisdiction to prosecute a crime is through the express request of the United Nations Security Council or if a non-member state permits the ICC to exercise its jurisdiction in the case of a particular crime. None of these conditions are met in the case of the four men in question. Not only that, but at present the ICC is only mandated to prosecute crimes committed after it came into existance on 1 July 2002 or in the case of a new member, after it has ratified the Rome Statute.
As it stands at present, the international justice system is wholly inadequate for the task it is supposed to fulfil because the most inviolate principle of post-1945 geopolitics - the absolute sovereignty of the nation state - still trumps what is supposed to be the second great pillar of the post-war international consensus: the universality of human rights.
Those who argue that, for practical reasons as much as anything else, the ICC cannot become the first court of redress for all the world’s ills are of course correct. The ICC must remain a place at which only those charged wirh the most serious crimes can be tried. However, the court’s raison d’être, namely bringing individuals to justice from states that are either unable or unwilling to prosecute, needs to be extended to the point that the court’s jurisdiction is truly universal. Furthermore, it needs to be given the authority to try crimes committed before 1 July 2002.
Doubtless many international lawyers would object to these suggestions. International law has been founded upon consensus. At present, no state on earth is party to any international convention or organisation that it has not chosen to sign up to. There are many good reasons for this modus operandi, not least of which is that social, religious and cultural differences mean that internationally, laws vary. Yet the ICC does not deal with such laws, its jurisdiction covers only the most serious crimes, namely the crime of genocide; crimes against humanity; war crimes and the crime of aggression. Surely it is not beyond the realms of possibility to achieve consensus on the point that those accused of such crimes must stand trial, no matter who they may be and where on earth they may happen to live. Ideally, the prosecution of such crimes will be the responsibility of the individual state, but where a state proves unable or unwilling to prosecute, there must be an effective court of last resort. The International Criminal Court will continue to be a misnomer so long as as its jurisdiction stops at the borders of states that don’t want to play ball.
The issue of retroactive legislation is, if anything trickier still. One of the basic principles of law is that it must be certain. An action cannot be legal one day and then prosecutable the next. Legislation can be passed that makes an action that was once legal now illegal, but prosecutions of that action can and should only take place after the new law has come into effect. It would not be right for an individual to be hauled up on charges of filing his tax return incorrectly a year ago because the law on how to correctly file tax returns has changed since that point. Only if the tax return wrongly filed after the new law came into effect could that individual be prosecuted.
Yet this is not the case with the ICC. The crimes it was set up to try were crimes in 1994, they were crimes at the time of the inception of the ICC and they are crimes now. Some will point out that what constitutes the crime of genocide and what constitutes the crime of aggression is still not fully agreed upon, yet that is just as much the case now, after the establishment of the ICC with its authority to try such crimes, as it was in 1994.
It has been pointed out on more than one occassion that international institutions such as the ICC (or the UN for that matter) are only as effective as the most powerful states wish them to be. The biggest stumbling block for the ICC has so far been that for almost the entirety of its short existence it has been confronted by an American administration singularly opposed to the idea that any international institution should be able to exercise jurisdiction over American citizens without the express permission of the United States.
Such was the opposition of America to the notion of an ICC with universal jurisdiction under the Bush administration that on 30 June 2002, the day before the Rome Statute was to come into force, the US declared that it would vote against a resolution renewing for 6 months the mandate of the UN Mission in Bosnia and Herzegovina (UNMIBH) and threatened to do the same with respect to all other UN peacekeeping operations if US military personnel participating in such operations were not granted an exemption from the ICC’s jurisdiction.
The upshot of this was United Nations Security Council (UNSC) Resolution 1422, which stipulated that in the case of UNSC mandated operations, any incidents involving personnel of contributing states not party to the Rome Statute would not fall under the jurisdiction of the ICC for a period of twelve months unless the UNSC (on which the US has a veto) expressly stated otherwise. Subsequent UNSC resolutions to the same effect have if anything weakened the authority of the ICC still further.
The announcement by President Obama on 31 March that America would seek a seat on the UN’s Human Rights Council has been hailed by UN Secretary General Ban Ki-Moon as indicative of “a new era of engagement” on the part of the United States. The fact that it would be a struggle to be less engaged than the former Bush administration should not detract from this.
However, if the United States is really serious about engaging with the international community, then it also needs to ratify the Rome Statute as a matter of urgency. That being done, the US needs to use its considerable global influence - and President Obama his considerable global credibility - to push for a renegotiation of the Rome Statute to make the jurisdiction of the ICC truly universal and applicable to crimes committed no matter what their date.
Not only that, but the hitherto mentioned rule of conditionality also needs to be modified. International lawyers such as Kevin Heller have argued persuasively that the “unable or unwilling” clause of the Rome Statute that allows the ICC to step in if a state proves itself unable or unwilling to prosecute only applies if a state is making it more difficult to prosecute an individual. The statute does not permit the ICC to step in if a state’s inequitable legal process makes a conviction less difficult, as would be the case in Rwanda at present. Though there is disagreement amongst international lawyers on this issue, the very fact of such disagreement is argument enough to modify the statute so as to extend beyond question the ICC’s authority to cases where an inadequate respect for due process on the part of a nation state would make a conviction easier to obtain in addition to a conviction being made too difficult.
There is an unpleasant imbalance in the international justice system at present. The issue of the four Rwandans whose extradition has been denied by the British courts is paradigmatic of the problem. Had the extradition been granted, the system at present stipulates that they must stand trial in Rwanda, though they would certainly not receive a fair trial. With the extradition request refused, it now appears that these men may not face a court at all. This is what is known as international injustice. What is worse is that it is unnecessary international injustice, and it needs to change.