(Excerpt from address to the International Law Students Association comprising students from the Master of International Law and the Master of International Economic Law, Paris I Panthéon-Sorbonne University.)
| by Dr. Dayan Jayatilleka
( January 18, Paris, Sri Lanka Guardian) I look at the issue of accountability primarily as a political scientist and from a comparative politics point of view. And I am struck by the fact that what I consider to be an exemplary progressive democracy, Brazil, headed by Dilma Rousseff, who was herself an guerrilla and a political prisoner, tortured by the military junta, has only now, some weeks ago, instituted a commission of inquiry into the conduct of the military junta from 1964 to 1988. In Argentina, we have known for a long time the notorious torturer and executioner, the so-called Angel of Death, the naval captain Astiz. Astiz has been sentenced only now for the crimes that he has committed from 1976 to 1979. I could go on. When I look at Bangladesh, there is a commission of inquiry into the atrocities committed in 1971, four decades ago. And there are many societies which have moved from conflict to post-conflict society, from authoritarianism to democracies, which have deliberately chosen not to open up the issue of accountability until a new generation and a new mentality has been formed. And this, I wish to point out, concern deeply unpopular military regimes, military juntas which actually tortured some of the leaders of today, like Mujica in Uruguay, a former Tupamaro urban guerrilla leader who was for two years in solitary confinement in a disused well.
In Sri Lanka by contrast you have a widely popular army; popular because it put an end to thirty years of suicide bombers. I really do not think that any democratically elected government is going to risk being the first in the world to open up the military to an international inquiry on a war’s last stage or successful conclusion, considered by most of the citizenry to be liberation. I do believe that accountability is important; I do not feel bound to ‘Asian values’ and ‘home grown’ solutions and so on. But I also do believe that universality works through the particular. And that particular, in Asia, in the global South, means the particularities of every society –and I am not talking about culture- but the stage of political development which includes the need not to jeopardize stability and democracy because democracy is always fragile. I believe that every society, as part of its sovereign right, decides on when it will confront certain issues of collective trauma and how, and Sri Lanka is no different from these other societies. I do not believe it will be the first to stand in line and say, “it is alright, let’s not talk about Agent Orange, let’s talk about Sri Lanka”.
Does Sri Lanka subscribe to universality of values? Yes but I will be honest enough to say that there is a problem. Formally the Sri Lankan State does so, because we have signed up to so many conventions and we have been an active part of the UN system. But there is an ideological struggle going on, as in every society. Societies have this tendency to turn inwards or outwards. There are those who would say that universal values are just a disguise for the West and that you need to give primacy to your own national or local values.
The most important thing however, is that we are human beings. Therefore, deriving from the universality of the human condition, there are universal values which, in the final analysis, must be regarded the highest of values. But we must be realistic enough to understand that there is unevenness. In the theoretical sense, we have to be aware of two major errors. While one error is of local values placed higher than universal values, there is another error. That error is to think that universality manifests itself unmediated. And this is not true because the universal manifests itself and can only manifest itself through the particular. So we have to understand that universality itself develops unevenly.
Someday if the United Nations itself is made more democratic and more representative with more power to the General Assembly and more representation at the Security Council then perhaps this would be easier to resolve. The debate usually polarizes between those who say that national sovereignty and no individual rights and those who say yes to national sovereignty and that individual rights are obsolete. However, if you go back to the original Declaration of the Rights of Man and of the Citizen of 1789 you would remember that article 3 says that “All sovereignty flows from the nation”. So there you have almost a perfect synthesis and equilibrium of the rights of the citizens and the sovereignty of the nation. And we have lost that, theoretically and in practice. I think the mediatory term here, which is missing, is the intervention of Rousseau, the whole idea of popular sovereignty. All of this needs working out, the nation, the national sovereignty, popular sovereignty and the rights of the citizen. Is popular sovereignty possible without national sovereignty? Can a citizenry exist without its constitution as a nation?
That does not mean that the citizenry can be suppressed under this notion of national sovereignty. But there is such a thing as the sovereignty of the State. Where does it stop? What are the boundaries of State sovereignty? Regis Debray made a very interesting intervention “in praise of borders”, but of borders as bridges, not walls. So we have to reassess the importance of national sovereignty because too often national sovereignty has been brushed aside as part of a unipolar, hegemonistic and interventionist project, which is also a reality in international politics.
I ask you to bear in mind that while we have many voices from Asian friends, gently urging us and nudging us in the direction of ethnic reconciliation through reform– and I see this not as a negative factor– on the issue of sovereignty and on the related issue of an international inquiry into the conduct of the war there are no pressures at all, from any part of Asia. I think Dr. Henry Kissinger was correct when, in his last book, the excellent book on China, he makes the point which has been picked up since by others that though Westphalian sovereignty is no longer a touch stone in Europe, you have an almost classically Westphalian notion of sovereignty in Asia — I would say in Eurasia from Russia onwards, and among the BRICS as well as in the global South as a whole. That is also a reality that you have to deal with.
As we can see in the Arab Spring, I do not think that this new Westphalian notion can prevail if it were to ignore popular sovereignty. It will not be possible for States and regimes to brush everything under the carpet of national sovereignty, but national sovereignty cannot be completely dismissed or thrown away, and it certainly will not happen in Asia for quite some time to come. Right now Asia is not some backward old traditional place. It is probably one of the two most interesting places in the world today, left-leaning Latin America being the other. Asia is a cutting edge of modernity now and we witness what is termed an alternative Asian modernity.
I know it is not fashionable or politically correct to talk about Carl Schmitt. His best known essay was of course The Concept of the Political, in which he makes the major point on the friend-enemy distinction as defining the domain of the political. In all frankness my own attitude is what is known as ‘left-Schmittian’ – the TELOS group, scholars like Chantal Mouffe and others have reassessed Schmitt from a radical or progressive point of view and I tend to go along with quite a lot of that. Go check out the debate between Schmitt and Hans Kelsen on the realities of international politics versus international law. You will find it at least provocative. He cuts through a lot of the romanticization of international law and does as a jurist, albeit with a very lucid polemical style, in a spirit that is very contemporary. You do not have to accept it but his counterview has to be taken a little seriously because there are, apart from international law, other realities as well.