Common rules in terror war

By Kishali Pinto Jayawardene

First, we had Ambassador Ashley Wills toasting Mr V. Prabhakaran at a (high level?) gathering of Colombo's business community and then in quick succession thereafter, re-iterating the US stand on LTTE as a terrorist organisation to a daily newspaper in Colombo while the US embassy called upon the Tigers to honour the truce terms. The message seemed to be clear; the noose put by the United States round the Tigers would be tightened if the Tigers did not play ball, crudely speaking. Appropriately, Tiger spokesman, Anton Balasingham issued a swift denial of "intentional" violation of the truce, confining the violators to individual members of the LTTE and saying that they would be severely dealt with. And the sweet icing on this particular cake came late this week when a United Front government spokesman, citing the US stand, warned the LTTE that it should know that "Sri Lanka had powerful friends" and that "this was a source of enormous strength to the government and the people." This was perhaps the most "quotable quote of the week", only being beaten - and that too, arguably - by President Chandrika Kumaratunga's reported excuse on Saturday that the Presidential appointment to the Constitutional Council was being delayed because Premier Wickremesinghe had requested her to appoint somebody other than a lawyer to it.

For those of us who think that powerful nations have friends or enemies, history - and recent history at that - provides us with numerous examples violently to the contrary. When such naivete is expressed with regard to nations who consider themselves to be beyond the norms and standards of the community of nations, the danger becomes all the more relevant. While the United States has - attempted at least - to embody values of liberalism and human rights within its own frontiers, its contrary record with regard to its engagement in other countries is far too well known to merit mention here. This ambivalence - and arrogance for international norms binding lesser countries- continues to be well seen in the conflict in Afghanistan. One aspect of this has been well demonstrated in the US treatment of persons captured in Afghanistan. That this has come in for deserved - and long overdue- international concern this Tuesday by the Inter-American Commission on Human Rights is therefore significant news.

Issuing cautionary note to the Government of the United States regarding its treatment of detainees from the continuing Afghan conflict at Guantanamo Bay, Cuba, the Inter-American Commission has stated that it has decided after careful deliberations, to adopt "precautionary measures", asking the US to take urgent measures necessary to have the legal status of the Guantanamo Bay detainees, determined by a competent tribunal. The "precautionary measures " have been issued by the Commission under the mandate given to the Commission by the membership of the Organisation of American States (OAS), including the United States, under Article 106 of the OAS Charter. This, together with Articles 18, 19 and 20 of the Commission's Statute, vests the Commission with supervising member states' observance of human rights in the American Hemisphere. Relatively cautious as it is, the stand of the Commission in issuing Tuesday's note to the United States, has been welcomed by international human rights activists.

In articulating its request, the Commission has paid particular attention to the observance of Articles I (right to life), II (right to equality before law), III (right to religious freedom and worship), IV (right to freedom of investigation, opinion, expression and dissemination), XVIII (right to a fair trial), XXV (right to protection from arbitrary arrest), and XXVI (right to due process of law) of the American Declaration. It has also applied definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration and other Inter-American human rights instruments in situations of armed conflict. 

The reasoning of the Commission is useful in illustrating the relationship between international human rights norms and humanitarian law in intense conflict.

The background to the request is acknowledged to be the fact that the government of the United States considers itself to be at war with an international network of terrorists, that the United States undertook a military operation in Afghanistan beginning in October 2001 in defending this war, and that most of the detainees in Guantanamo Bay were apprehended in connection with this military operation and remain wholly within the authority and control of the United States government.

The Commission points out that it is well-known that doubts exist as to the legal status of the detainees. This includes the question of whether and to what extent the Third Geneva Convention and/or other provisions of international humanitarian law apply to some or all of the detainees and what implications this may have for their international human rights protections. 

Though the Commission does not explicitly say so, the refusal of the United States government, to extend prisoner of war status under the Third Geneva Convention to the detainees, without submitting the issue for determination by a competent tribunal or otherwise ascertaining the rights and protections to which the detainees are entitled under US domestic or international law, has formed the basis for Tuesday's communication to the US. Clearly, the Commission has found itself unsatisfied by the available information which suggests that the detainees remain entirely at the unfettered discretion of the United States government. In the circumstances, the Commission has decided that the rights and protections to which the detainees may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.

In taking this approach, the Commission has drawn upon certain basic principles that inform the interrelationship between international human rights and humanitarian law. Thus, it has restated the accepted premise that where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, can be devoid of legal protection for his or her fundamental and non-derogable human rights. 

Accordingly, the Commission has pointed out that a competent court or tribunal, as opposed to a political authority, must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state.

In thus ensuring that "the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights", the Commission has specifically not prejudged the possible application of international humanitarian law to the detainees at Guantanamo Bay. 

The Commission has also requested that it be provided with information concerning compliance with its request within one month of receipt of the communication, and thereafter on a periodic basis. In view of the observations of the parties on compliance, the Commission has stated that it will decide whether to extend or lift the measures. The American response to the deadline promises to be highly interesting.

This is not the first time, of course, that the Inter-American Commission has issued what would amount to an reprimand on the United States. In May 1999, the Commission found that the incommunicado detention by US forces of seventeen Grenadians following US military action in Grenada in 1983, had failed to comply with US obligations under the American Declaration of the Rights and Duties of Man. The international political context within which Tuesday's communication was delivered makes it far more explosive however and of immediate relevance to other countries engaged in intense terrorist conflict.