Terrorism & Human Rights

By: Desmond Fernando

It is my privilege today to deliver the Peter Pillai Oration. I had
the good fortune of being a student at St. Joseph's College, when he
was Rector. I was even more fortunate to be his pupil. He taught me
Government in the VIth form.

Father Peter was one of the outstanding men of his generation. He
combined a mind of the most dazzling brilliance with a deep commitment
to social justice.

Father Peter Pillai fought for the rights of the working class and the
under-privileged. On 14th October, 1936, he founded the Catholic
Social Guild and in January 1937, he began the Journal "Social
Justice". In the very first issue he stated, 'we repudiate most
emphatically the laissez-faire theory of economic liberalism, which
claims for the employer the right to make the maximum of profits at
any wage that the workman is willing to accept.........."

Father Peter was strongly committed to Human Rights. It is thus
perhaps apposite that I should talk to you today on the theme of Human
Rights and Terrorism.

Terrorism
Terrorism is a widely used word. However, the question arises as to
what terrorism means. Can the term be defined and if so, would the
definition be an acceptable one? I have looked for the answer to this
question in a number of books and laws. Professor Charles Townshend in
his treatise on Terrorism published by the Oxford University Press
begins with these words. "Terrorism upsets people. It does so
deliberately. That is its point." The whole question of terrorism was
brought to the forefront on 11th September, 2001 with the destruction
of the twin towers in New York and the killing of almost 4000 people.
This was followed by President Bush declaring "a war against terror".
The world finds itself after September 11th in an apparently open
ended and permanent state of emergency.

Both political scientists and lawyers have tried to define terrorism.
They distinguish terrorism from criminal violence or military action.
However, there is no accepted definition of terrorism or terrorist.
Why is this? It is because terrorist is a label. It has never been
voluntarily adopted, except with one exception by any individual or
group. It has been applied to them by others. Generally by the
governments of the States they attack. Sri Lanka has a prevention of
Terrorism Act but the Act has no definition of Terrorism. However, the
United Kingdom has been more ambitious in this regard. It defines
Terrorism for the purpose of the Terrorism Act 2000 as follows:-

(1) In this Act "terrorism" means the use or threat of action where:
(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a
political, religious or ideological cause.

(2) Action falls within this subsection if it -
(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person
committing the action,

(d) creates a serious risk to the health or safety of the public or a
section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

On the other hand the USA defines it as a calculated use or threat of
violence to inculcate fear, intended to coerce or intimidate
governments or societies;

Having done this, they find it hard to specify the behaviour thus
condemned. However, both these States go on to do two things. Firstly,
they label certain organizations as Terrorist. Secondly, they draw up
schedules of proscribed offences such as possession of explosives or
taking hostages. Most of these offences are already offences under
Ordinary Criminal Law. For terrorism appears to be a state of mind
rather than an activity. In the view of the State, only the State has
the right to use force. Thus the State has a monopoly on the
legitimate use of violence, except with minor exceptions permitted by
law such as the right to self-defence.

The term terrorism has had a chequered history. It has been said that
the very first dictionary definition was in 1798 by the Academie
Francaise, "systeme regime de la terreur". In October 1793, the French
Republic which had in the previous year executed King Louis the XVIth
declared terror "the order of the day" to preserve the Revolution
against its enemies, namely Kings and Aristocrats. However, most of
its victims were ordinary civilians who refused to recognize the
attempt by the State to reorganize the Roman Catholic Church. Amidst
this horror and confusion, there were born two modern concepts of
Human Rights. The committee of public safety and general security
pioneered the concepts of representative democracy and equality before
the law. The French Revolutionary leader Marat opposed the traditional
concept that a King was sovereign by divine right. He dropped the term
"divine right" and came up with a novel concept that the people were
sovereign and that the sovereignty of the people was an
imprescriptible right.

Since the French Revolution, groups of people have believed themselves
justified in opposing with violence a repressive regime in which no
freedom of political expression or organization was permitted. Thus
arose the puzzling statement that "one person's terrorist is another's
freedom fighter". It is this relativism which has made it difficult to
find an acceptable definition of terrorism. An attempt to deal with
this question was made in the 1st Geneva Protocol of 1977 which dealt
with this question and extends the protection of the laws of war to
those who "are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their self-
determination". Article 44(3) of the protocol grants the legal status
of combatants and of prisoner of war status in case of capture to
fighters who are not members of the armed forces of a State and
normally do not carry their arms openly.

Inability to find a definition of terrorism which is totally
acceptable does not mean that one cannot make comments on it which
help one to understand terrorism. Clausewitz has defined war as the
collision of two living forces. Terrorism by contrast is sometimes a
negation of combat. Its targets are attacked in a way that inhibits
self-defence. Indiscriminate bombings of a Temple or the suicide
killing of a civilian whether he be a leader or an ordinary citizen
are typical terrorist acts. Thus, we see in terrorism except for those
terrorists who are fighting racist regimes in the exercise of their
right of self determination a flouting of the international law of war
and a refusal to accept as binding the distinction between
belligerents and neutrals, combatants and non-combatants, legitimate
and illegitimate targets.

Although the 20th Century produced successful wars of national
liberation and in the case of South Africa against racism with a
significant terrorist dimension, none succeeded by terrorism alone.
Thus, even when the African National Congress had a violent struggle
against Apartheid in South Africa, in the end it was negotiation
between Mandela and the South African Government that resulted in the
abolition of Apartheid and the election of Mandela who had spent many
years in Jail as a terrorist as President. According to Terror & Just
Response by Professor Noam Chomsky of the Massachusetts Institute of
Technology', page 70 the Pentagon has Mandela on its list of
Terrorists. Mandela was however awarded the Nobel Peace Prize some
years ago.

Professor Chomsky also refers to State terror. He states "State terror
elsewhere in Central America in those years also counts as
international terrorism, in the light of the decisive U.S. role and
goals, sometimes frankly articulated, for example, by the Army's
School of the Americas, which trains Latin American military officers
and takes pride in the fact that "Liberation Theology ... was defeated
with the assistance of the U.S. Army." (Terror & Just Response by
Professor Noam Chomsky, page 72)

However, it is clear that where a national liberation movement has as
its opponent a regime which shares its values, then the best method is
a non-violent campaign. This is how Mahatma Gandhi and Nehru won
independence for India from the British. In the 30's and 40's, more
and more Englishmen began to sympathize with India's struggle for
independence. Ultimately, the Labour Party itself which came to power
soon after the Second World War, set a deadline for independence and
sent Lord Mountbatten as the last Viceroy of India. It is significant
that in the course of a non-violent procession led by Mahatma Gandhi,
when one man in the procession threw a stone at a Policeman, Gandhi
called off the entire procession. He was totally and completely non-
violent. This greatly impressed the minds of the liberal British
elite.

We must contrast this to the striking failures of those who have been
the purest adherents to terrorism like the urban guerrillas of the
1970's and the 1980's such as the German Red Army. The result of these
terrorist campaigns have not been the overthrow of States but the
reduction of the quality of freedom.

However, one must not be unaware of those who believe in the
liberating value of violence for the oppressed. In the words of Frantz
Fanon "it frees the native from his inferiority complex, his despair
and his inaction: it makes him fearless and restores his self
respect".

Impact of Terrorism on Human Rights
The next problem is, what is the impact of terrorism on Human Rights?
Six months after the September 11th attack, the American Jurist,
Professor Ronald Dworkin warned that the biggest damage resulting from
the counter terrorist reaction had been to the long cherished American
commitment to individual freedom. Over reaction to terrorism will
clearly have a most pernicious long term effect on the quality of our
life.

How does a Democratic Society which is committed to Human Rights react
to terrorism? There is a well known distinction between anti-terrorist
measures which consists of every lawful step a State might take from
special legislation to Martial Law but always keeping in mind the
rights of the subject. On the other hand, counter-terrorism is the
adoption of terrorist methods such as assassination, arbitrarily
reprisals, the bombing of civilian targets and abduction by the
States' own Forces. What we must avoid is counter-terrorism. That is
the use of terrorism by the States' own Forces.

The principle of proportionality for Democratic States
It is important that the principle of proportionality as prescribed by
St. Thomas Aquinas is adhered to in this situation. It stands up
remarkably well to a modern view of justice and expediency The
reaction of a State should be in proportion to the wound inflicted on
it. Such action should not add to the volume of violence and the
outcome of any counter attack should not lead to a greater injustice
than that which was the casus belli.

To take the example of Sri Lanka, we must remember that the present
ethnic struggle which had become violent resulted from two main
causes. Firstly, a failure to investigate and to bring to book those
who were responsible for the killing of large numbers of the Tamil
ethnic minority in the race riots of 1958, 1977 and 1983. The State
simply condoned those killings. This was particularly so in 1983 when
the State reacted to the mass killings and sufferings of the Tamil
ethnic minority by enacting the 6th Amendment to the Constitution
which made it illegal for anyone to ask for a separate State. No one
who held public office or even practiced as a lawyer had the right to
ask for a separate State. This was a severe curtailment of the freedom
of speech. Shortly before there had been large scale massacres of
youth in Jaffna who were thought to be supporters of the TULF. Thus
monsters like the late unlamented Inspector Bastianpillai were allowed
to run riot. Navaratnaraja was one of the many men who died in Army
custody with a large number of injuries. A government which was a
member of the United Nations and bound by the Universal Declaration of
Human Rights began to deny many of those rights to a particular ethnic
group. They forgot that the preamble to the Universal Declaration of
Human Rights, states "whereas it is essential if man is not to be
compelled to have recourse as a last resort to rebellion against
tyranny and oppression that Human Rights should be protected by the
rule of law."

At the time the Sixth amendment was passed, the Tamil parties had
decided that the only solution to the ethnic problem was the
establishment of a separate State. The Race riot of 1983 resulted in
the passing of the 6th Amendment of the Constitution. This amendment
prohibited any person from supporting, espousing, promoting or
advocating the establishment of a separate State. The penalty for
doing so was confiscation of all property other than property to be
determined by an order of Court as being necessary for the sustenance
of such person and his family. He was deprived of his civic rights and
if he was a member of Parliament, he would cease to be a Member of
Parliament. Thus the rights guaranteed by the UN Universal Declaration
of Human Rights in Article 19 of the Freedom of Opinion & Expression
was violated by the Constitution of Sri Lanka.

In addition, as pointed out earlier, Article 3 which provides that
everyone has a right to life, liberty and security of person was
openly violated. Thus the rationale for the rights set out in the
Universal Declaration for Human Rights, namely that these rights
should be protected by the rule of Law, "if man is not to be compelled
to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law"
failed. The consequence which it foresaw, namely, rebellion, began.

The second cause for the so called Terrorist Movement was the failure
of the Sri Lankan Government to honour agreements entered into between
successive Sri Lankan Governments and the Tamil people. The first of
these was the Bandaranaike-Chelvanayagam Pact which was unilaterally
abrogated by the Sri Lankan Government. The second was the Dudley
Senanayake-Chelvanayagam Pact which was abrogated by the Dudley
Senanayake Government. The Dudley Senanayake-Chelvanayagam Pact was
abrogated because the Opposition which included two Marxist Parties,
the LSSP and the CP roused the masses with the crudest and most
diabolical racist slogans. One of these was the notorious, "Dudleyge
Bade Masala Vadai".

So when Mr. Dudley Senanayake failed to implement the agreement, he
wanted to resign from the Premiership and give up Politics. However,
the late Mr. Chelvanayagam prevailed upon him to continue in Office in
order that there would be some safeguard that the Tamils would be
fairly treated by the Government. Thus, the Tamils went through the
bitter experience of being betrayed by two successive Sri Lankan
Governments as well as having their rights guaranteed by the Universal
Declaration of Human Rights grossly violated. The older Tamil leaders
were patient. However, Tamil youth were not. Thus, we have today the
LTTE.

The Solution
However, all is not lost. There have been similar problems in other
countries. In Palestine, the problem like ours was an ethnic problem.
In Ireland, it was more a problem of religion. In both countries,
particularly in Ireland, a successful Peace Process took place. One of
the essential ingredients was the facilitation of the process by an
outside power. In the case of Ireland, this included both a United
States Senator and a Finnish Leader.

In Sri Lanka the Ceasefire Agreement of 2002 was an important
milestone towards establishing a humanitarian regime in our country.
This agreement was accompanied by a Peace Process which was
facilitated by Norway but today because of the listing of the LTTE by
the European Union as a Terrorist Organization, three of the 5 Nordic
countries which are members of the EU have been forced at the instance
of the LTTE to withdraw from the Monitoring Mission.

This leaves behind only Norway and Iceland. Iceland is a country with
a miniscule army. This means that Norway which has to appoint the SLMM
Chairman; but has appointed someone from another Nordic country has to
also now preside over the Ceasefire Monitoring Mission. This is not
satisfactory because the SLMM headed by a Norwegian will have to make
a finding either that the government or the LTTE is guilty of a
violation of The CFA. This would embarrass it considerably in its role
as a Peace Facilitator.

The importance of confidence building
To ensure peace and prosperity for Sri Lanka, it is important that
confidence building between the government of Sri Lanka and the LTTE
should take place. At the very first meeting in Oslo between the LTTE
and the government of Sri Lanka, the LTTE said that they were willing
to withdraw its demand for a separate State and agree to a Federal
State. This was a major concession. The then Prime Minister, Mr. Ranil
Wickremesinghe also ensured that Tamils did not have second class
justice under the Prevention of Terrorism Act. This reprehensible Act
made confessions to the Police admissible. The Attorney General was
requested to withdraw every single indictment based entirely on
confessions. He was also directed not to ask for any postponements in
trials under the PTA. Most check points in the country where Tamils
had been harassed for years and several Tamil girls raped by the Army
and Police were also withdrawn forthwith. The LTTE agreed that traffic
could use the A9 road to Jaffna. Not only did the humanitarian
situation improve remarkably but our growth rate increased from minus
1 to 6%%. Foreign investment came to Sri Lanka. Tourism once more
became a major foreign exchange earner.

During this time came the Donor's pre Conference which was held in
Washington in 2003. The LTTE were not able to attend, because it had
been proscribed in the USA. This was an unfortunate development. Then
came the Donor's Conference in April 2003 in Tokyo which the LTTE
refused to attend because of the Washington problem. This indicates
the importance of the donors - particularly the four co-chairs, namely
the UK, USA, Japan and EU consulting the Norwegian facilitator who
knows the sensitivities of the parties before taking any decision or
issuing a public statement. On 31st October 2003, the LTTE submitted
the draft Internal Self Government Agreement. On 3rd November, 2003,
President Kumaratunga took away 3 Ministries, namely Defence, Interior
and Media from the Ranil Wickremesinghe government. Without control of
the Ministries of Defence & Interior, it was not possible for the
Ranil Wickremesinghe Government to honour the undertakings given under
the Ceasefire Agreement with regard to the armed forces and Police.

On 2nd April, 2004, a Parliamentary Election was held and the Ranil
Wickremesinghe Government was defeated by a coalition put together by
President Kumaratunga which then took office. On 26th December, 2004
came the Tsunami which caused immense suffering and damage in the
Tamil areas. Subsequently the P.Toms Agreement was negotiated but this
was struck down by the Supreme Court.

The Peace Process deteriorated and human security in the country also
deteriorated. In the last six months, we have lived through the worst
period since independence, when killings and abductions are taking
place on a massive scale not only in the Northern and Eastern
Provinces, but also in Colombo.

However, the picture is not altogether bleak. President Rajapakse has
a history of concern for Human Rights. He was of immense assistance to
the Mothers Front in the late 1980's when a large number of young men
disappeared. Indeed he took the trouble to collect the documentation
to establish the correct situation in Geneva and was harassed in Sri
Lanka at the Airport. Recently he had a detailed discussion with Prime
Minister Tony Blair of England on how the Irish problem which was the
cause of much violence in England for decades was solved.

The Government's intention to have a political settlement has been
made clear by the appointment of a committee of experts which includes
persons such as Dr. Jayampathy Wickremaratne who played an important
role in the drafting of the 2000 Draft Constitution which
unfortunately was not proceeded with. That Constitution to a large
degree had the support of both the major parties in Parliament. It
also provided for devolution. The President is also taking the
initiative of inviting the major opposition party for deliberations.
Great patience should be shown by both sides and a constructive
workable arrangement arrived at.

The blame for the failure of the two agreements referred to earlier
lies not only with the Sinhala leadership but also the leaders of the
Tamils who perhaps should have given more attention to inform the
Sinhala elite and opinion leaders of their problems and the
justification for the solutions offered by them. Thus, these
settlements lacked the critical mass which could have been obtained if
important groups within the Sinhala elite also supported these
settlements.

Again a major grievance of the Tamils, namely that Sinhala was the
only official language, was solved by the 13th amendment which brought
in Article 18 (2) which made Tamil an official language. A pro-active
Official Languages Commission can make this a reality.

International dimensions of terrorism
Soon after the attack on the twin towers in New York on 11th
September, 2001, President Bush declared "a war on terrorism". A well
known comedian and former Monty Python Star, Terry Jones, publicly
posed the question whether it was possible to make war on an abstract
noun. However, the United Nation's Security Council, on 28th
September, 2001 passed Resolution 1373. This Resolution was adopted
pursuant to Chapter 7 of the UN Charter and is thus binding on all
member States. Reaffirming that all Acts of international terrorism
constituted a threat to international peace and security, the Security
Council called on States to work together urgently to prevent and
suppress terrorist acts including through increased co-operation and
full implementation of the relevant international conventions relating
to terrorism. This resolution decided in particular, that all states
must prevent and suppress the financing of terrorist acts; criminalize
terrorist acts and the willful collection of funds, in order to
carryout terrorist acts. As regards Refugees, the Resolution calls on
States to refuse to grant asylum to those who finance and, facilitate
or commit acts of terrorism or harbour the authors.

However, implementation of Resolution 1373 could result in bizarre and
perhaps amusing problems. A leading English Jurist has said that if
Osama Bin Laden happens to take refuge in England and the US
Government asks for his extradition to the US, the British government
would be legally obliged to refuse such extradition, if the offence
with which Osama is charged carries the Death Penalty.

Unfortunately, Resolution 1373 does not refer to UN Resolution 54/164
which declares that all member States are bound in that "all measures
to counter terrorism must be in strict conformity with the relevant
provisions of international law including international human rights
standards."

In its observations to the United Kingdom, the Human Rights Committee
of the U.N. noted "with concern that the State Party in seeking inter
alia to give effect to its obligations to combat terrorist activities,
pursuant to security council resolution 1373, is considering the
adoption of legislative measures which may have potentially far
reaching effects and affect rights guaranteed in the covenant. The
State Party should ensure that any measures it undertakes in this
regard are in full compliance with the provisions of the covenant
including when applicable the provisions on derogation contained in
Article 4 of the covenant. (UN Doc. CCPR/CO/73/UK,CCPR/CO/73/UKOT, 5
November 2001, paragraph 6).

Guantanamo
A fall out of President Bush's "war on terror" was a camp containing a
large number of detainees mostly non-nationals of the US held in
Guantanamo, an American base near Cuba.

The legal position was stated by the US Supreme Court in Rasul et al.v
Bush (No. 03-334 & 03-343 28th June 2004). The Court decided that US
Federal Courts did have jurisdiction to determine the legality of the
executives potentially indefinite detentions of individuals held in
Guantanamo. The historical principles of habeas corpus were applied.
Justice Kennedy in his judgement stated as follows:-

"Perhaps, where detainees are taken from a zone of hostilities,
detention without proceedings or trial would be justified by military
necessity for a matter of weeks; but as the period stretches from
months to years, the case for continued detention to meet military
exigencies becomes weaker."

Lord Steyn, a judge of the House of Lords has said in "Guantanamo Bay:
The Legal Black Hole",
"At present we are not meant to know what is happening at Guantanamo
Bay. But history will not be neutered. What takes place there today in
the name of the United States will assuredly, in due course, be judged
at the bar of informed international opinion."

Conclusion:
In conclusion let me quote from Helen Duffy's "The War on Terror and
the Framework of International Law" - "It will be the extent of the
international community's commitment, to clarify and strengthen
international law, not only by reiterating standards but by ensuring
that they are respected, that will define where the pendulum stops and
where the ultimate impact of the 'war on terror' is on the
international rule of law."