Sunday Times 2
Statesmen, power and human rights
“When a statesman errs, it is irrevocable,” said Henry Kissinger on April 11, 2012 at Harvard University’s Sanders Theatre where he engaged in a conversation on foreign policy with Prof. Joseph Nye (the man who developed the theory of soft power). If Kissinger were to be right about the actions of a statesman, then, our diplomatic engagements concerning the 25th UN Human Rights Council session have to be carefully measured bearing in mind that it cannot be undone. Some argue that the call for an international inquiry by other States on what went on during the last days of war in Sri Lanka is to please the Tamil Diaspora in the West. While that may (or may not) be true, one larger game afoot is the use of human rights by the United States as an ideological tool of soft power to maintain its spot as the global superpower.
Academics and diplomats like Nye and Kissinger point out that, today, with the increase of economic interdependence between States the classic balance of power politics that prevailed during the Napoleonic wars, is no more. Countries with traditional power resources today will not, in the first instance, follow the same practice of using military force to maintain balance of power, because waging war is too expensive. In Henry Kissinger’s book ‘On China’, he analyses the Crowe memorandum which looks at the ‘why’ of World War I. Crowe’s analysis of the cause of WWI is the rise of Germany: that regardless of Germany’s objectives, its naval supremacy threatened Britain. Arguably, from a Crowe perspective, any successful rise of China confronts America’s position in the world regardless of China’s intentions. But, Kissinger presupposes that both U.S. and China would maintain a utility-based sociability to avoid disaster between them, as now they are mutually dependent on each other. Therefore China, a creditor nation that holds more than a trillion dollars of U.S. government debt, will not bomb the U.S. tomorrow to expand its power as to do so is to destroy its own assets: a zero-sum game.
Therefore, powerful countries today are more likely to maintain balance of power by using less threatening forms of soft co-optive power like ideals such as human rights and international institutions like the UN Human Rights Council. These forms become essential for hegemonic States to get other countries to do what they want. In the case of the U.S., human rights are not only used to weaken China’s image, but also used to control countries like Sri Lanka possibly to prevent such smaller States from jumping on to the bandwagon of competitors like China. Ideals like human rights, therefore, have become a key source of coercion. As Joseph Nye points out “when ideals are an important source of power, the classic distinction between realpolitik and liberalism becomes blurred”. It is noteworthy that during the presidency of Jimmy Carter U.S. Congress approved annual reports on other countries including U.S. allies to monitor human rights violations. To date, the U.S. Department of State publishes these country reports as the ideal of human rights figures in as a key point in U.S. foreign policy. But, naturally, the use of human rights by the U.S. as an ideological tool is highly ironic considering its history on the treatment of rights. During the Cold War, the U.S. held diplomatic hands with China in the Tiananmen context as to do so was more strategically important to meltdown the power of the Soviet Union than to criticise China for violating rights. So, the Human Rights rhetoric essentially figures in as a political tool conveniently used by powerful States when it fits their agenda to do so.
Then, the anxiety of world leaders over Sri Lanka’s internal affairs calling for an international inquiry can be perceived as a form through which politics is pursued through international law. But, can international law actually be seen to enforce human rights? Given the recommendatory nature of Human Rights Council resolutions and given that key international human rights treaties do not contain provisions for their own enforcement, the phrase ‘international law’ largely remains a contradiction in terms.
Can International criminal tribunals like the ICC be perceived to facilitate cosmopolitan justice where rights are violated? The legal criticism aimed against the ICC is that it lacks the legitimacy it needs as Criminal law essentially depends on the existence of a sovereign with a capacity to emit legislative orders from which criminal sanction derives legitimacy. In that, the international legal order is one in which there is no sovereign authority with a government and judicial apparatus and therefore akin to what theorists call an anarchical society.
However, in his book ‘Law, War and Crime’ Gerry Simpson, who examines the discourse around law and politics in the war crimes field, points out that war crimes tribunals give human rights the ‘bite’ it lacks. Although there are individual petition mechanisms available under instruments like the ICCPR, States are under no obligation to obey the decisions of such treaty mechanisms. But war crimes tribunals on the other hand seems to complete the project of international law by making it more like domestic law in seeking out perpetrators through individual criminal responsibility. The problem, however, is whether war crimes tribunals can be seen as institutions that deliver ‘impartial justice’ on behalf of the international community to facilitate the human rights movement free from political influence. The issue is raised whether the ICC is truly a cosmopolitan structure because of the UN Security Council control over the ICC, and also because it seems to apply international justice to the international society’s ‘outsiders’ such as Sudan, DRC, Uganda and the Central African Republic. Western States for example (like the U.S.), manage to evade the provision for Court’s jurisdiction over non-party nationals when crimes are committed on the territory of a State party by way of Article 98 non-surrender agreements. More, the ICC does not embody cosmopolitanism to the extent that one might expect as its jurisdiction is subject to State sovereignty under Articles 1 and 17.
The question however is: should one resort to an international criminal tribunal or an international inquiry to mete out justice in post-war settlements? Arguably the most important word in a post-war context is ‘reconciliation’ and not ‘retribution’ as is the case before an International Criminal Tribunal. Therefore, it raises the question whether bringing perpetrators before such a forum would resolve post-war issues and effect much needed political reform. Former South African President Thabo Mbeki writing to the New York Times (February 5, 2014) questions the relevancy of international criminal tribunals in post-war divided societies arguing that ‘criminal trials are driven by a winner-takes-all logic — you are either innocent or guilty… in civil wars, no one is wholly innocent and no one wholly guilty… to call for victims’ justice as the ICC does is to risk continuation of civil war.’ Even though ‘human rights maybe universal, human wrongs are specific’. Therefore what is needed in a post-war situation is a political process to emerge from issues particular to that society which led to human wrongs during conflict.
Addressing post-war issues in Sri Lanka and effecting constitutional reforms are not in order to mollify the U.S. or statesmen like David Cameron or other members of the Commonwealth. It is first about the obligation to avoid making the post-war period a veritable battleground for division and grapple with the larger problem of the dichotomy between liberalism and multiculturalism, and second, to avoid any crippling of a democracy to a state where political accountability is but a vague inchoate idea. Criticism is aimed at post-war Constitutional aberrations such as the 18th Amendment that removes the presidential term limit, which increases the power of the executive president.
Arguably, the now extant executive is no more than its original understanding. In that, the 18th Amendment can be seen merely as an iteration of the Sri Lankan Constitution’s historical beginnings as a partial document — i.e. a Constitution that began to be identified solely with the executive president, other branches walking a step behind. For example, a principal means through which the president can override legislative opposition is through the unrestrained referendum power under Article 85(2) — a power that is broader than that in the fifth French Republic.
The Sri Lankan Constitution therefore is arguably proof of a tradition of constitutional outbidding of constituent power. With the removal of the presidential term limit the simple criticism that could be aimed is that it removes the safeguard against an executive’s self-perpetuation in office.
However, placing no limit on reelection is also in keeping with principles of presidentialism. In that, there should be as few restraints as possible on the people’s will as Presidentialism requires election by popular vote. The danger of misusing the presidential office to gain electoral advantages can be eliminated in a system that has competitive elections.
Whatever the constitutional and political reform aimed at in a post-war context in Sri Lanka it should be kept in mind that extractive political institutions could cause a nation to fail. Authors like Samuel Huntington (in his ‘Political Order in Changing Societies’) point out that, when socio-economic change such as urbanisation, improvement in education and literacy broadens people’s political demands and expectations, then, political institutions too must make progress in the same ratio. Failing to do so causes instability. Any post-war political process should therefore not only adopt political institutions that meet with people’s political expectations but also make a sustained effort to make such process legitimate.
(The writer holds a Master of Laws degree from Harvard Law School and a former visiting lecturer both at the Faculty of L:aw and Department of Political Science and Public Policy, University of Colombo).