18th June 2000
This article is extracted from "Justice without frontiers: furthering human rights" by Justice C. G. Weeramantry who was a judge of the International Court of Law.
The discipline of international law condemns in the strongest terms such violations of the law of nations as piracy and genocide. It is a punishable offence, accepted as such by international law and national law alike, to sell heroin on the side streets of a city. Yet it is quite legal to organize a carnival of weapons of death in that city's public park. Indeed while the former activity attracts the strongest social condemnation, as indeed it should, the latter attracts the participation of the elite and the powerful. They will be honoured guests at this carnival of death and will be wined and dined by governments themselves.
Each of the articles on display is precision made to kill humans with the maximum efficiency that modern technology can devise and each is exhibited by its proprietor with the same pride in his product and the same flaunting of its virtues as are shown by any hustler at a country fair. Drawn to the spectacle like moths to a flame, the powerful come from across the world to burn up a substantial part of their country's resources in this game of destruction. Terrorists' agents and the wheeler-dealers who live handsomely off the multi-billion dollar black market in arms add variety to the scene.
It is submitted in this article that as the armaments industry keeps tightening its global stranglehold, international lawyers and human rights scholars should not resign themselves to feelings of impotence but should actively examine every concept and procedure afforded by their disciplines to counter it, before it is too late. Why have weapons of death been able so far to elude those who should be ensuring and controlling them? Why does the new discipline of human rights, now an honoured body of learning in its own right, join with traditional international law in resigning itself to this violation of every canon in its book of rules? What avenues may be explored to place fetters on it?
One avenue of approach is to invoke in the campaign against the weapons trade a substantial body of principles, procedures, rules of law and international sentiment that have grown up around the discipline of human rights. In doing so one has the advantage of the growing prestige and authority of human rights as a provider of norms as well as being an important modern motive force of law reform, both international and national.
This approach becomes all the more compelling when one considers that every provision of the Universal Declaration of Human Rights is violated by this trade, be it the right to life, the right to health, the right to a pure environment or the right to human dignity. It is the legal obligation of every state to ensure compliance within its jurisdiction with the base principles of human rights. States which are parties to the International Covenant on Civil and Political Rights and other international human rights documents have solemnly accepted this responsibility.
The Right to Life
Article 3 of the Universal Declaration affirms that everyone has the right to life. To what extent does the arms trade infringe on this principle by providing to those in power the ability to take life away from any citizen of the world?
The ultimate illustration of the denial of the right to life is offered by nuclear weapons and I shall therefore start with some observations regarding these. It should be remembered, however, that on a lesser scale the same considerations apply to all the sophisticated weaponry which is so freely sold today in the arms bazaars that it has become part of the basic equipment of the most minor powers and of terrorist movements across the world.
The Right to Self-Determination
With the right to life we may well couple another major right without which most other human rights are robbed of their true content - the right to self-determination. Here again, I will quote the words of another leader at the same summit, Olof Palme, snatched from his life of service to humanity by an assassin's bullet, itself a product of the arms trade.
The principle of self-determination must mean that we, the non-nuclear weapons states, have an equal right to be masters of our own destiny. This right is being circumscribed by the threat of the use of weapons which would bring death and destruction to our peoples. Our message today is that we can never accept an order which in a way resembles a colonial system where the ultimate fate of other nations is determined by a few dominant nuclear powers. We, the non-nuclear, must also have a say.
Human Rights Denials within the Weapons Industry
It is easy to make out a catalogue of all the basic human rights destroyed or eroded by the armaments industry. In pursuing such enquiries it is useful also to take into account the fact that the armaments industry is in league with the governments of the day and is thus a sharer in the aura of secrecy that surrounds governments. The weapons industry is linked with national security and it is through the argument of national security that most of the secrecy attached to government operations is justified. These justifications rub off on the weapons industry. Consequently, the denial of human rights, such as the right to information and the right to privacy and freedom from surveillance of those employed in national defence is often practised by the weapons industry as well.
Indeed, military technology gives governments the ability to inflict on their own people in peace time the surveillance devices, the techniques of regimentation and even the techniques of interrogation and torture which are part of the technical expertise built up for the purposes of war. In the building of that expertise the laboratories of the armaments industry are willing accomplices of the governments from whom they make their profits.
Another basic human right eroded by the industry is the democratic right of free and fair representation in the legislature. Under the protection of democracy, the industry maintains powerful lobbyists whose admitted purpose is to influence legislators in favour of the projects which bring profit to the industry. Such lobbying is a recognized activity in the major democracies, and on Capitol Hill or in the lesser centres of power, the point of view of the arms trade is one of the most important factors influencing the minds and wills of legislators.
No study of the arms trade can fail to note its contribution to the epidemic of terrorism now sweeping the globe. Terrorists of this generation are not ill-equipped guerrilla fighters with make-shift devices contrived in their forest hideouts. They are armed with some of the most sophisticated weaponry that money can buy. There is often an inter-linkage between the major terrorist movements. Their sources of funds, organized in a global network, run to millions of dollars.
From the standpoint of the arms dealer, there is good profit here, as well as the advantages that the war is comparatively small and long- lasting. It is large enough to be profitable but small enough to avoid developing into a major conflagration. Its problems are so intractable that it will be of long duration, thus keeping the profits steadily rolling in. With its use of missiles and machine guns and vast quantities of bullets and hand grenades, the terrorist market is a steady customer of the arms industry; and the latter, knowing the lucrative nature of the business, has its agents in touch both with the overseas funding sources and with the local leadership of the terrorist movements.
A common answer offered by way of justification of arms supply is that international law fully recognizes the right of self-defence. If a nation buys weapons on the basis that they are needed for self-defence, we are asked, 'What is the status or right of the arms supplier to question this?'. International law, like human rights, needs to pierce the smoke screen created by this alleged justification.
In the first place it is well to remember that when the arms trade is free to sell to country X, its neighbour or potential rival, country Y, seeks on the basis of self-defence, to balance this new strength in its rival and the arms trade then hauls in a double profit. Country X then adds to its arsenal and country Y replies, much to the further profit of the industry, which grows with every increase in international tension. It is easy and convenient for the arms trade to argue that it is not its business to check the bona fides of the buyer's need.
Everyone engaged in international affairs - and most of all, every arms supplier - knows that an acquisition of weapons which is supposedly for self-defence is often an accumulation of weapons for the purposes of aggression. The argument of self-defence is often speciously invoked when the weapons capability of a given country already far exceeds that which is necessary for purely self-defensive purposes. Self-defence involves the threat of an impending attack and this is seldom the case in relation to many of the countries that are weapons purchasers.
If the question whether an act of force was committed in self-defence or not 'must ultimately be subject to investigation and adjudication' under international law, the accumulation of the means wherewith such aggression can be committed cannot avoid external scrutiny. It cannot be claimed to be a matter purely within the autonomous determination of the state concerned. The fact that the act of aggression has not yet taken place should not preclude this inquiry.
This point is made here merely to show that the ipse dixit of a state that it is acquiring weapons for self-defence does not necessarily conclude the matter. International law is entitled to probe beyond this process of autonomous self-determination by the state concerned.
It should also be added that very often the purpose of weapons accumulation is internal repression. This is patently clear in the case of some of the dictatorships which are to be found across the world. In such instances too, the self-defence argument is untenable in the light of the human rights principles set out in the earlier part of this article.
The Supreme Court has granted leave to proceed to ten editors of national newspapers in a fundamental rights application challenging the ongoing censorship.
The court directed that the Competent Authority file objections in three weeks time and fixed July 19 as the date for substantive argument.
The bench, presided by Chief Justice Sarath Silva pointed out that guidelines should be framed under the Regulations in order to make the censorship workable and stated that the involvement of the Editors Guild in this process was crucial.
The ten editors who are members of the Editors Guild filed the application in courts alleging that the censorship was arbitrary and a violation of their fundamental rights to freedom of speech and expression and equality before the law.
R.K.W. Goonesekere, appearing for the editors on Tuesday, told court that the Competent Authority has been unequal and arbitrary in censoring news items. The Editors also alleged that Regulation 14 of the Emergency Regulation Act 1 of 2000, is in violation of Article 12 (1) of the Constitution of Sri Lanka.
Mr. Goonesekere pointed out that newspapers were an important source of information on current affairs and while the state owned newspapers had earned the reputation of reporting slanted news, the reading public depended on the wide coverage and information reported in the independent press of the country.
Therefore, to ensure an independent media, freedom of speech, expression and publication, it is essential that no restriction should be placed on the dissemination of news, he said.
Mr. Goonesekera said the editors were now in a position to submit what they had been forced to publish with the censor's approval. They could show that the regulations had no proper guidelines and that there had been unequal treatment between the different newspapers, he said.
Mr. Goonesekere told court that in June 1998 when a Competent Authority was functioning, newspapers would receive a warning after publication of an objectionable news item, but the amended 1999 regulations which called for 'prior sanction and restraint' and which were before courts did not have proper guidelines. Under the 2000 Regulations which operated alongside the 1999 Regulations, the position was worse as was evident by the many arbitrary deletions and changes in material submitted by the newspapers before Court, he said.
The Chief Justice meanwhile pointed out that it was the reader who suffered most from the censorship. He said that the CA should either allow or disallow a copy judging by its general content and taking it as a whole instead of deleting words and sentences and causing confusion among the readers.
Justice S.W.B. Wadugodapitiya said once the CA started doing so, he became the author and it was his version of the story which was published.
Court also observed that according to Mr. Goonesekere's submission that the CA had deleted parts of an editorial which dealt with the censorship, the censor was protecting himself and that the censorship had nothing to do with the ongoing war.
Counsel also submitted that the censor had to go through 800 copies a day and had to cope with a staff of 25 which meant that he himself did not censor the copies and also that in the case of Tamil copy he had to rely on translations.
He pointed out that as copies were censored by various people using different yardsticks and the censor approved it, he could unknowingly approve a copy for one newspaper but disallow another newspaper from carrying it.
He said the censor should be an independent person and not someone from the Government Information Department.
Mr. Goonesekere with S. Hewammane, J.C. Weliamuna and Kishali Pinto Jayawardena, instructed by Lilanthi de Silva appeared for the Editors Guild. Additional Solicitor General Saleem Marsoof appeared for the Attorney General.
Meanwhile, leave to proceed was also granted in respect of four other petitions filed by deputy editors, photographers, columnists of national newspapers and readers against the censorship.
The petition filed on behalf of political activist Paikiosothy Saravanamuttu and law lecturer Rohan Edrisinha as reasonable readers who had been affected by the ongoing censorship was supported by R.K.W. Goonesekere with M.A Sumanthiran, Kishali Pinto Jayawardena and Sundari de Alwis.
Attorney Ranjit Abeysuriya appearing with Suranjith Hewamanne, J.C. Weliamuna and Janaka Samarakoon appeared for The Sunday Times columnist Tassie Seneviratne while A.S.M. Perera and S.L. Gunasekera, appearing with Chitta Swarnadhipathi, Manohara de Silva and Kishali Pinto Jayawardena respectively supported the other two petitions on behalf of the "Ravaya" and Deputy Editors of three national newspapers.
The bench comprised Chief Justice Sarath Silva and Justices S.W.B. Wadugodapitiya and L.H.G. Weerasekera.
Mr. Abeysuriya PC submitted to Court two cases which dealt with freedom of expression and quoted Justice Sharvananda in previous case law on the importance of the preservation of the right to freedom of speech and expression.
He said that the column "Police Problems" had been arbitrarily censored, with two blatant examples being in one instance with the phrase "most inadequately trained troops" being changed to " most trained troops" and in another instance where a comment condemning the state -run Rupavahini for inciting violence through their medium had been censored.
A.S.M.Perera appearing for news editors and defence correspondents of the "Ravaya" cited a report in the state run Dinamina which identified Competent Authority Sripathi Suriyaarachchi as a media spokesman for the PA in the recent elections. He said this was a clear example of his natural bias and unsuitability of holding his present position under the Emergency Regulations relating to censorship.
S.L. Gunasekera appearing for the Deputy Editors cited instances where references to India being an untrustworthy neighbour and criticism of the Indian Prime Minister for his lukewarm attitude to helping Sri Lanka had been censored.
This drew a quip from Justice Wadugodapitiya as to whether it was the Indian censor who had deleted those remarks. Mr. Gunasekera also cited the complete censoring of the US government's criticism of the implementation of the censorship in Sri Lanka and asked how these affected Sri Lanka's national security.
Additional Solicitor General Marsoof said notice was not received by the Attorney General's Department in respect of some of the petitions. He was given a day to inform Court on the possibility of formulating a working arrangement with regard to implementation of the censorship under the Regulations.
On Wednesday, Mr. Marsoof said he was not appearing for the Competent Authority and had no instructions except to say that directions on the working of the censorship had been sent to editors.
Ms. Jayewardena who appeared as junior to Mr.Gunasekera said her instructions were that guidelines had not been received by all editors. The Supreme Court said that the situation was unsatisfactory and advised the Attorney General to consult the Editors Guild in drafting guidelines for a workable censorship.
Ms. Jayewardena requested leave to proceed which was then granted with the Competent Authority being asked to file objections in three weeks and inquiry fixed for July 19. As no interim relief had been requested by the petitioners, the Supreme Court said that it would not go into that aspect.
The Free Media Movement said yesterday that the government by branding four journalists as LTTE supporters had exposed them to security risks.
In a statement, the FMM said the journalists, S Sivaram, Roy Denish, Saman Wagarachi and B Sivagan, had attended a Tamil seminar organised by the Peace Council and it was absurd to brand them as LTTE supporters.
The Government has pledged to the New York-based Committee to Protect Journalists to end the censorship by mid-August when Parliamentary elections are called.
A CPJ delegation which was in Colombo this week was told by Media Minister Mangala Samaraweera during a private meeting that "Censorship has polarised an already polarised situation."
Mr. Samaraweera acknowledged that the broad restrictions, which were imposed on both the foreign and local press on May 3, were unpalatable over the long term and contrary to the spirit of free expression in Sri Lanka, a statement from the CPJ said.
Alarmed by the censorship, CPJ sent an emergency delegation to Colombo this week to discuss the restrictions with government officials and local journalists. The delegation consisted of CPJ Board member Peter Arnett, a Pulitzer prize-winning war correspondent for The Associated Press and CNN; Kavita Menon, CPJ Asia Programme Coordinator; and A. Lin Neumann, CPJ's Bangkok-based Asia consultant.
"The government was open to what we had to say," said Mr. Arnett. "We agreed to disagree on some issues, of course, since we think censorship is not an effective way of dealing with the press or conflict situations."
The censorship was put in place by the Government in response to a series of battlefield reversals suffered by government forces in the Jaffna peninsula.
"I take the view that censorship is really counterproductive," Foreign Minister Lakshman Kadirgamar told CPJ. "I can see for myself it is being applied in a very heavy-handed way," he said.
The Foreign Minister said he had urged the President to consider easing the restrictions, the statement added.
Under existing emergency regulations, the government imposed formal censorship on war news in June 1998, but it was enforced only sporadically. The current restrictions are the harshest seen in Sri Lanka for over a decade. On June 4, the government lifted the restrictions on foreign media, but local media curbs remain in force.
The government has banned live television and radio news programming and required all local newspapers to submit copy which might affect national security to an official censor - the "Competent Authority" in Sri Lankan parlance- prior to publication.
Mr. Samaraweera told the CPJ delegation that the government was committed to lifting the regulations no later than August 21, the date by which Parliament must be dissolved in advance of elections.
He defended the censorship as necessary in a crisis, the statement said.
Minister Samaraweera acknowledged that changes were needed in the government's approach to war coverage.
Even prior to the current round of censorship, there has been virtually no first-hand reporting of the war for years, because the government refuses to grant access to conflict areas except under tightly controlled circumstances. As a result, most reporting is based on press releases from either the government or the rebels.
Local editors told CPJ that the censorship was so broad it banned news that officials thought would create public disturbances or harm the national interest, including criticism of government ministers, military and the police — that they were unable to effectively cover a wide range of issues.
"There are no guidelines. There is nothing systematic on what they censor and what they don't censor," Lalith Alahakoon, editor of The Daily Mirror newspaper, told CPJ.
The CPJ statement quoted Sinha Ratnatunga, editor of The Sunday Times newspaper. "The censorship is political and nothing else. The government just doesn't want embarrassing news to come out in the press."
For example, coverage of military procurements- a source of frequent scandal and controversy in Sri Lanka- has been banned, according to defence correspondent Iqbal Athas, who reports for The Sunday Times and CNN.
As a result of the regulations, two newspapers have been forcibly barred from publishing and their premises locked by police. One of these papers, The Sunday Leader, poked fun at the censorship in a front page article. The other, Uthayan, is the only Tamil language daily published in the city of Jaffna. The official censor accused Uthayan of "acting maliciously and detrimentally in publishing information that is biased to the LTTE," but local journalists say that the editors of Uthayan had taken great pains to report fairly in a tense, often dangerous atmosphere.
Ten editors of national newspapers have petitioned the Supreme Court to order the government to lift the emergency restrictions. The editors called the censorship a flagrant violation of freedom of expression, and complained that it was being enforced in a manner that was discriminatory, unreasonable and arbitrary.
In their petition to the court, the editors cite numerous instances of non-military copy being banned, including editorial cartoons critical of the censor himself.
The CPJ delegation attended preliminary hearings on the editors' petition. The court has agreed to hear full arguments on the merit of the petition on July 19. It has the power to order the government to lift the censorship.
In three days in Colombo, the CPJ delegation held extensive discussions with local journalists, editors and diplomats, in addition to talks with government officials.
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