Columns - FOCUS On Rights

Welcoming the best news in this decade

By Kishali Pinto Jayawardene

The filing and taking forward of war crime suits against former President of the US, George W. Bush (Jnr) in countries such as Switzerland and Spain in reference to, among other illegal acts under international law, the torture of detainees during the wa in Iraq and Afghanistan is, no doubt, long overdue and will be rightly applauded by human rights advocates the world over.

Principle of universal jurisdiction

As was reported in this newspaper last week, two torture victims in Geneva had planned to file criminal complaints against the former U.S. president, who was scheduled to arrive in Switzerland on February 12 for a public speaking engagement. Swiss law requires the presence of a torturer on Swiss soil before the investigation can proceed. If indeed, the former US President had proceeded with his visit to Geneva, the complaints would have tested (and appropriately so) Switzerland’s compliance to its obligations in terms of the United Nations Convention Against Torture (UNCAT). His visit was called off however.

Article 5 of the UNCAT establishes the requirement of universal jurisdiction, which entails that a state party to the Convention must take all necessary measures to establish its jurisdiction over offences referred to in article 4 of UNCAT, so as to ensure that all acts of torture are punished. Article 4 of UNCAT states that every State party to the Convention shall ensure all acts of torture (and/or attempts regard the same or complicity or participation thereof) are offences under its criminal law. These offences must be punishable by appropriate penalties that take into account, their grave nature. Incidentally Sri Lanka’s domestic law giving effect to UNCAT in 1994 has omitted this interesting aspect of universal jurisdiction in its provisions.

The authorizing of ‘water boarding’

But to return to the pending war crime suits against the former US President, his authorizing of the ‘water boarding’ of terror detainees despite the same being a recognized form of torture is frontal in these legal challenges which are well on their way in Spain, for example. The former US President has been on record in stating (quite unconscionably) that he would not have hesitated to order the same procedures again if he had the authority to do so. This was part of the US policy initiated under his administration that enemy combatants were no longer entitled to the fundamental protections granted to every human being by the Geneva Conventions. His liability under international law is therefore a thorny issue.

The organisations who are attempting to hold the former US leader to standards of international accountability vis a vis the litigation initiated in Switzerland include the Centre for Constitutional Rights (CCR), the Berlin-based European Centre for Constitutional and Human Rights (ECCHR) and the Paris based International Federation for Human Rights (FIDH). These organisations have well established reputations and represent the vanguard of a sustained international effort to bring leaders of powerful countries to justice in respect of abuses committed under their command. Whether or not these efforts will succeed is anybody’s guess. However, inasmuch as they constitute an embarrassment in the minimum to flagrant offenders of international law, they need to be wholeheartedly welcomed.

Globally pivotal efforts

At a different level, these efforts are globally pivotal for more reasons than one. First and most importantly, these war crimes suits will be especially of note for civil rights advocates in the developing world who struggle with their backs against the wall against tinpot dictators whose most common refrain is ‘Well, if the United States can do it, why cannot we behave in the same way?”

The increasing number of suits will signal at least, a common united front to applying the same standard of international human rights law and humanitarian law to all states and their leaders despite the varying dynamic of international realpolitik. Such efforts will undercut a most formidable argument advanced by authoritarian and near-totalitarian regimes which are to the effect that international law is hypocritical in enforcing one standard against developing countries and another against states termed as superpowers.

This propaganda deliberately does not recognise arduous and long standing efforts by juristic committees of the United Nations such as the Human Rights Committee and the Committee against Torture coupled with the thematic Special Rapportuers of the United Nations who are senior and respected jurists in their own right, to apply international standards of law equally to all states, big or small.

For example, the Special Rapportuer on Torture has been, in the past, one of the strongest critics of the United States, openly proclaiming that its leaders are consistent violators of the norms prescribed under the UNCAT. Similarly, the UN Human Rights Committee has issued several Communications of Views holding countries of the Western hemisphere such as Canada and the Netherlands responsible for failing to adhere to their obligations in terms of the International Covenant on Civil and Political Rights as much as it has held Sri Lanka and Nepal (for example) accountable in the South Asian region.

Abandoning international standards must be resisted

The fight to enforce international human rights law equally and without discrimination in regard to countries across the world has not been without its spectacular drawbacks and pitfalls, among which the so called ‘war against terror’ led by US and UK undoubtedly, marked its most testing time. In the last decade, the global ‘war against terror’ as popularly if not superficially termed by its advocates, has set the fight for universal standards of rights protections back by several decades. However, the premise (as convenient as it may be for some) that international law has been replaced by international realpolitik appears to be far too premature a judgment at this point of time.

So this is not to say that international standards which have been so painstakingly developed at the wrath and ire of many contrarians in the early years must be abandoned so lightly. Granted, the propaganda that these standards are of little use in a world which is seen as bowing to superior power has been phenomenally successful in a context where state security is directly in issue as in the case of internal armed conflicts. Sri Lanka is one good case directly in point.

As disturbingly, these developments have fostered a ‘victim’ mentality on the part of educated professionals in these countries who ought to know better. Thus, we see the reaction in Sri Lanka even when international human rights law is referred to in the most minimalist terms. This is starkly in contrast to a far more measured era some decades back when the country’s Supreme Court itself used these standards to enhance the ambit of the fundamental rights protections guaranteed by the Constitution. Now, what we have is a narrow and limited rejection of international standards motivated either by cold and dispassionate self interest in some cases or by excessive hubris in others, including on the part of those with trained judicial minds.

For example and to many neutral analysts, the exceptionally untoward rejection of Sri Lanka’s accession to the First Optional Protocol to the International Covenant on Civil and Political Rights by former Chief Justice Sarath Silva in the Singarasa case (2006) was an illustration that fell fairly and squarely into the latter category. To a great extent, this judgment compelled otherwise lackadaisical international observers to question the country’s compliance to international standards and focused unwarranted and unnecessary attention on Sri Lanka in the corridors of the United Nations.

Distinguishing between incorporation and intervention

To say that international standards of human rights law must be brought in at whatever appropriate point to buttress domestic rights protections or that international law must be universally applicable against torturers regardless of whomever they may be, is however a far cry from supporting a call for international intervention by the United Nations which involves far more complicated questions of responsibility and accountability. Distinguishing between the two is perhaps the greatest challenge facing human rights advocates in developing countries today.

At the most minimal level however, continued attempts by global human rights organisations to hold the former US leader as well as the former UK leader Tony Blair to account under international law for illegal actions in regard to the wars initiated in Iraq and Afghanistan is indeed the best news that one can get in this decade.

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