By Neville Ladduwahetty
During the course of a speech to the Law Society in London on June 26, 2017 the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein stated that Britain’s Prime Minister had “…called for human rights laws to be overturned if they were to “get in the way” in the fight against terrorism. Specifically, Theresa May said there was a need “to restrict the freedom and movement of terrorist suspects when we have enough evidence to know they are a threat, but not evidence to prosecute them in full in court.” For an increasingly anxious public, shaken by the recent and dreadful terrorist attacks, her remarks no doubt reflected real anger and frustration, but they also seemed intended to strike a chord with a certain sector of the electorate, and it is this expectation that truly worries me”.
The attempt by the High Commissioner to imply that the reason for the British PM’s comments was to assure a “shaken” public that she would be tough with terrorists and therefore has more to do with politics, and not the “anger and frustration” that Member States have as to how to deal with terrorism within their borders,appears to be a feeble effort to deflect the failure of the UN and its Agencies, such as the UNHRC, to develop guidelines on howMember States should handle terrorism. At least the International Covenant on Civil and Political Rights has established the limits to which Human Rights could legitimately be derogated “In time of public emergency which threatens the life of the nation”. However, “No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision” (Article 4, of the Covenant). Regrettably, similar guidelines do not exist in the case of terrorist attacks that make citizens of States “anxious” and “shaken”, but may not have reached the threshold of “threatening the life of a nation”. This is where the UN and its Agencies such as the UNHRC have failed.
The fact that the High Commissioner has asked the Prime Minister which universal rights she is “willing to give away”, confirms the absence of such guidelines. The High Commissioner unashamedly and audaciously poses the question: “If the Prime Minister meant what she said, which universal rights would the UK be willing to give away in order to punish people against whom there is insufficient evidence to justify prosecution? What, exactly, are the rights she considers frivolous or obstructive? The right to privacy? The right to liberty and security of person? Freedom of expression? Freedom of religion and belief? The principle of non-refoulement? The prohibition of torture? Due process?”
Commenting on the measures adopted by France, the High Commissioner stated: “Likewise, in the weeks following the vicious terrorist attacks in Paris, in November 2015, the French authorities took broad aim and closed down 20 mosques and Muslim associations, while also undertaking some 2,700 warrantless house searches. In the United Kingdom, the Investigatory Powers Act of 2016 constituted one of the most sweeping mass surveillance regimes in the world, permitting the interception, access, retention and hacking of communications without a requirement of reasonable suspicion. Refugees and migrants were increasingly viewed as Trojan horses for terrorists. Hysteria raged in political circles across Europe, and the terrorists must have been grinning. When it came to the management of the public’s reaction, instead of adopting a common-sense approach, fever set in”.
THE NEED for GUIDELINES
Instead of lecturing Heads of sovereign States, the High Commissioner has failed to recommend what would be a “common-sense approach” to address the concerns of a “shaken” public while retaining the rights of “even criminals”. For instance, following the end of World War II, a set of guidelines was developed in the form of the 4 Geneva Conventions in 1949 relating to the conduct of International Armed Conflicts. Each of these Conventions contain common Article 3 that address issues relating to non-International Armed Conflict. The increase of non-International conflicts following decolonization in several regions of the world and the realization of the inadequacy of common Article 3 to address issues relating to such conflicts, resulted in the Additional Protocol II of 1977. This Protocol, that took 12 years to develop sets out in detail the rules of war that should guide non-International Armed Conflict as occurred in Sri Lanka.
However, the current threats to security in Britain and France have not reached the threshold of an Armed Conflict wherein provisions of Additional Protocol II could be applied. Consequently, in the absence of appropriate guidelines,Member States are compelled to develop their own strategies to restore security; a fact reflected in the variety of strategies adopted by Member States. The failure of the UN and the UNHRC to develop appropriate common-sense based guidelines iswhy ad-hoc strategies have been developed by Member States.
THE CONFLICT in SRI LANKA
Unlike the security situation in Britain and France, the conflict in Sri Lanka was a non-International Armed Conflict when judged by internationally accepted criteria. The strategies adopted during such conflicts should therefore be judged by the provisions in Additional Protocol II of 1977. The fact that the UNHRC has failed to recognize the full import of the provision in Article 3 of the Additional Protocol II cited below is evident from the repeated resolutions against Sri Lanka despite the body of evidence available for the UNHRC to judge for itself that the means adopted to restore its “national unity and territorial integrity”, were legitimate given the extraordinary challenges that Sri Lanka had to overcome during the final stages of the conflict when over 300,000 civilians were taken hostage.
Additional Protocol II: Article 3 — Non-intervention
1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.
2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.
Thus, during a non-Internal Armed Conflict it is the responsibility of the State concerned to determine the limits of “… legitimate means, to maintain or re-establish law and order or to defend the national unity and territorial integrity of the State”. This fact should be accepted when the conflict reaches the threshold of a non-International Armed Conflict. Acceptance of this concept is evident from the U.S. Supreme Court in a 4-to-2 judgment in a case filed against former Attorney General John D. Ashcroft and former FBI Director Robert S. Mueller III for having arrested and detained hundreds of Arab and South Asian men as part of a nation-wide terrorism investigation. The judgment stated: “high officials who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make lawful decisions to protect the nation in times of great peril” (The Washington Post, June 20, 2017).
The U.S. Supreme Court judgment underscores the need for officials to be “free” to adopt measures that they consider appropriate during “times of great peril”. If the need for freedom is recognized concerning a decision taken in an office relating to a violation of human rights, should not even greater freedoms of judgment be granted to officers during the heat of battle as occurredd during the non-International Armed Conflict in Sri Lanka? If, as required by the UNHRC Resolution, a judicial inquiry into alleged violations during Sri Lanka’s armed conflict is held, it would amount to revisiting and recreatingcircumstancesin a sanitized environment based on spurious evidence that could never be representative of the real live situation when all the blood and gore is present in the battlefield. Therefore, there is a need to adopt a common-sense approach. Such an approach should be to evaluate the body of evidence already available, not forgetting the 300,000 + civilians saved, and assess whether the measures adopted were not legitimate. Any other approach would be a travesty of justice tothose who gave their full measure of devotion, the maimed, and the otherswho although whole remain traumatized by the horrors of war in order to make it safe for the living.
The UN and UNHRC have failed to develop guidelines as to how Member States should handle security situations arising from random terrorist attacks. This lacuna has resulted in Member States such as Britain and France developing independent strategies that areseriously problematic to the UN High Commissioner for Human Rights, judging from remarks expressed during his speech to the Law Society in London on June 26, 2017 cited above.
His suggestion is that a “common-sense approach” should be developed to assure the safety of an “anxious” and “shaken” public while assuring the rights of those who carryout terrorist attacks. Since this is a daunting undertaking that would vary from State to State, it becomes the responsibility of the UN and UNHRC to develop guidelines similar to those developed to guide States in the conduct of International and non-International Armed Conflicts in the form of the 4 Geneva Conventions of 1949 and the Additional Protocol II of 1977,respectively. Had Grotius been alive he would have severely admonished the UN and UNHRC for failing to fulfill their responsibilities to develop similar guidelines for the benefit of Member States as he did in his treatise On the Law of War and Peace, nearly 400 years ago.
The UN and UNHRC also failed Sri Lanka by not judging the vast body of evidence already available in terms of International Humanitarian Law (IHL) provided in Additional protocol II of 1977 applicable to non-International Armed Conflicts; a categorization accepted by the UNHRC. Instead, it is actively pursuing Resolution after Resolution for a judicial inquiry without striking a “balance” as called for by the U.S. Supreme Court cited above, by accepting that the real intent of those engaged in the Armed Conflict was none other than to “defend the national unity and territorial integrity of the State”. Attempting to judge whether the strategies deployed were legitimate after the fact is fundamentally flawed, because the challenges that Sri Lanka had to be overcome were so extraordinary since it wasset in a background of hostage taking that is unprecedented during Armed Conflicts.
The fact that Britain, U.S. and like minded others would never subject their armed forces to judicial inquiries is reflected in the remarks by Theresa May at the Tory Party conference when she said: “”We will never again — in any future conflict — let those activist, left-wing human rights lawyers harangue and harass the bravest of the brave: the men and women of Britain’s armed forces.” (Morning Star, October 27, 2016). Having so stated, however, Britain went ahead and supported the UNHRC Resolution calling for a judicial inquiry covering Sri Lanka’s Armed Conflict. Suchovert duplicity is of an order that is new even for Britain.
This lack of evenhandedness and balance would undermine the legitimacy of the UNHRC to a point that Member States may withdraw from participating in the UN and its Agencies; an indication of which has already been expressed by none other than the U.S. Such an eventuality would be a disaster for protectors and promoters of Human Rights. Therefore, if such an eventuality is to be prevented, the High Commissioner has to stop lecturing Member States on how they should meet security challenges by first fulfilling its own obligations referred to above, and take a common-sense and realistic approach via guidelines as to how Member States should cope with the plethora of challenges they are compelled to face in the midst of a chaotic and uncertain world.
July 6, 2017.