| by Dr. Ruwantissa Abeyratne
“Thou shalt be my witness”…Isaiah, 43-10.
( March 30, 2012, Montreal, Sri Lanka Guardian) When one looks at the polemics emanating from the UNHCR Resolution against Sri Lanka, there seem to be two arguments that are heavily polarized, at least from a legal perspective. One is the more uneducated view which clings to the obsolete theory that the international community cannot tell a sovereign State what to do under any circumstances. The other, which is more in keeping with current reality, is that the international community has intervened and can intervene in issues impacting human rights and human welfare. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, in her book Humanty’s Law ( Oxford University Press: 2011) says:
“ sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”. This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach”.
There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare. Let us take the chronological evolution first. After World War II, the world has, over the past 70 years or so, gone through three global political and economic stages. The first was the modernist era, where naturally, State sovereignty was considered paramount over any other consideration in the immediate and proximate aftermath of the War where nations and States were attacked. This lasted until the 1960s.
From then on the trend shifted to the post-modernist era where the focus veered from the interests of the State to the welfare of the citizen. Post modernism, which was a characteristic of the 60s and 70s, progressed steadily toward the 21st Century. Post modernist thinking was geared to accepting that human culture, as we knew it from a social and economic perspective, was reaching an end. This school of thought associated itself with the momentum of industrial society, drawing on an image of pluralism of cultures and a multitude of groups. The interaction between political modernism, which brought to bear the globalization of nations and deconstruction of separatism of human society, while at the same time ascribing to the individual certain rights at international law that transcended natural legislation parameters, has been symbiotic and essentially economic. In the post modernist era, the fundamental modernist philosophy of state sovereignty and peace gave way to an industrial culture that emphasized economic coexistence for the betterment of the global citizen.
The neo post modernist era was signalled as an immediate consequence of the attacks of 11 September 2001 where close to 3,000 human beings were decimated by terrorist activities within a few minutes. The principle of State Responsibility with regard to world peace and security which lies primarily in Article 24 of the United Nations Charter which calls upon all members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations, was immediately resuscitated in the minds of the international community.
This principle is embodied in the work of the International Law Commission, through Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts which provides that international responsibility of a State, which is referred to in Article 1, is attributable to that State if conduct of the State constitutes a breach of an international obligation of that State. The document also provides that the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations. The State responsible for an internationally wrongful act is under an obligation to compensate for damage caused, including reparation for financially assessable damage including loss of profits.
In addition to State responsibility for conduct attributable to that State, the International Law Commission has established that a crime against the peace and security of mankind entails individual responsibility, and is a crime of aggression. The Rome Statute of the International Criminal court, defines a war crime, inter alia, as intentionally directing attacks against civilian objects; attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objects; employing weapons, projectiles, and material and methods of warfare that cause injury The Statute also defines as a war crime, any act which is intentionally directed at buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.
This brings us to the second reason for the paradigm shift – the growing instances of torture and killings of non-combatants in warfare and the solid grounding of international society in an area of law called humanitarian law, encompassing human rights. From there came international criminal justice. Spawned by the Nuremberg rules which are formulated on the basic observation of Justice Robert Jackson who said: “Of course, it was, under the law of all civilized peoples, a crime for a man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act?”, international criminal justice has, through its ancestor – the Nuremberg rules – has made crimes against humanity positive law.
Security of the human being, although the focus of international attention at the present time, has its roots in years gone by. The rule of law has always been intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule and is diametrically opposed to both dictatorship and anarchy.
One of the most valued tools of the rule of law remains to be the writ of habeas corpus, which is a legal action, or writ (which is a formal written order issued by a body with administrative or judicial jurisdiction such as a court), through which a person can seek relief from unlawful detention of himself or another person. Also known as “The Great Writ,” a writ of habeas corpus ad subjiciendum serves as a summons that accompanies a court order addressed to the custodian (such as a prison official) which orders that a prisoner be brought before the court, together with proof of authority, that would enable the court to determine whether that custodian has lawful authority to hold that person. The writ carries with it the mandate that if the custodian does not have lawful authority to hold the person, he should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, “In free governments the rulers are the servants and the people their superiors and sovereigns.” The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable.