Human Rights Annual Report 2008 - Foreign Affairs Committee Contents


Submission from Tamils against Genocide United Kingdom

SUMMARY

  1.  This submission is made in response to the inquiry announced by the Foreign Affairs Committee (FAC) on 2 April 2009.

  2.  Thomas Hammarberg, The Council of Europe Commissioner for Human Rights, in his speech entitled "Protection and Promotion of Human Rights by International Structures—dilemmas and lessons learned" (London, 7 February 2008) said:

    "The international reach of [the] human rights protection is an obvious part of the principles that all human beings have the same inherent value and that the rights are universal. Those who cannot defend their rights themselves need and deserve support from the outside. They must not be left unprotected. This is a question of very basic solidarity."

  3.  It is contended that Mr. Hammarberg was right, and:

    — the development of a culture where fundamental rights are respected by governments and individuals alike should be a primary consideration in all aspects of international policy;

    — the United Kingdom, through the Foreign Commonwealth Office (FCO), has an insufficient capacity to effectively respond to acute difficulties by affording actual protection;

    — the United Kingdom must, as a matter of urgency, develop further its culture of affording primacy to the protection of human rights, using all legitimate means at its disposal—whether domestically or internationally;

    — the existing mechanisms of United Kingdom domestic law are insufficient to allow for the urgent and progressive development of protection for inalienable rights: this Committee should initiate and pursue inquiry as to how the protection gap which exists in Law is to be removed; and

    — the submissions above are fortified having regard to United Kingdom's response to the recent Genocide in Sri Lanka which the Committee is invited to consider as an exemplar as part of the matters under its inquiry.

THE IMPORTANCE OF PROTECTING HUMAN RIGHTS

  4.  The promulgation of the Universal Declaration on Human Rights and the establishment of the United Nations began a process which established a coherent framework upon which nations (and individuals) could rely upon to evince a claim for basic rights. This and other regional Instruments (for example, the European Convention on Human Rights and Fundamental Freedoms), have done much to prevent a return to wholesale abuses of "rights" within certain parts of the world—but not all.

  5.  International Peace and Security stands to be damaged by the denial of fundamental rights. The protection of Human Rights is not merely a matter of political convenience. An effective system of protection militates in favour of stability amongst peoples and nations. Standing up for rights can be a difficult choice, but it should not be shirked. Where absolute rights are concerned, the legal obligation must be to ensure effective and absolute protection.

  6.  The obligation to ensure rights is not merely a legal one. Where abuses of inalienable rights are concerned—for example, the obligation not to cause or permit Genocide—State responses which fall short of positively and immediately preventing abuse fundamentally undermine the Rule of Law and the protection of rights—to the detriment of all.

  7.  As has been foreshadowed, this submission invites the Committee to consider as part of the question it posed, how (if at all) the United Kingdom afforded protection when reacting to one of the most significant incidents of the use of armed force in the world today. It focuses upon an abuse of the most fundamental right vested in a people—the right to be protected from Genocide.

A NEW OUTLOOK UPON THE NATURE OF STATE OBLIGATIONS

  8.  Within contemporary Public International Law it is uncontroversial that binding legal norms can be created by International Instrument or by Customary International Law. Modern International Humanitarian Law has protected rights by repudiating any narrow (traditional) view of a State's obligation to protect rights being dependent upon mutuality. This is reflected in the judgment of the International Tribunal for Yugoslavia in Kupreskic et al (14 January 2000), where the more traditional view was roundly rejected as misconceived.

  9.  Individuals, NGOs and other organisations have been able to develop awareness of rights, largely by publicity and campaigns against individuals or governments that deny them. Non-state agents free from the shackles of diplomacy are often able to counter any institutional torpor which may develop within governments, by their role as an active and vocal conscience.

  10.  The existence of such a conscience is not enough. Such groups cannot assume responsibility for action in place of governments. Their role is limited. Some can merely mitigate the after-effects of rights abuses.

  11.  The continued exclusion of such parties from an effective judicial system whereby rights can be practically protected perpetuates a protection gap which facilitates the abuse of rights. (See below)

  12.  The Committee is invited to consider recent events in Sri Lanka in this context, particularly:

    a. There has been an undoubted Genocide of Tamils in the north of Sri Lanka. It cannot be said that UK citizens were not present—it is likely that some were.

    b. This Genocide is similar in method to that in the Balkans. [See below]

    c. Such a force as is being used in Sri Lanka is unlawful and indiscriminate.

    d. The international press have been excluded from the relevant areas—no good reason can exist for this.

    e. The diplomatic response has been at best to issue "strong words", or to "call for" ceasefire. [A separate bundle setting out the most recent events will be provided to the Committee]

    f. It cannot be said that the FCO were able to act effectively (whether alone or with other Foreign Services) so as to prevent Genocide. Nor can it be said that UK citizens were properly protected through this.

    g. Although each individual state has a responsibility to its own citizens to prevent genocide, if the state turns within itself, it is only other countries which can act.

    h. The Sri Lankan response may be characterised as unlawful having regard to Customary International Law, International Humanitarian Law and by reference to the following Resolutions of the United Nations:

  A.    Security Council Resolution 1265/1999.

  B.   Security Council Resolution 1296/2000.

  C.   Security Council Resolution 1366/2001.

  D.   Security Council Resolution 1325/2000.

  E.   Security Council Resolution 1460/2003.

  F.   Security Council Resolution 1674/2006.

  G.   Security Council Resolution A/RES/60/1.

  The points made in this context draw upon all the material submitted in support of this submission.

PROTECTION AND THE PROTECTION GAP

  13.  It should be uncontroversial that the effective protection of rights is most completely secured by:

    a. A system where the law is a deterrent.

    b. It identifies liability in the event of breach.

    c. It ensures legitimate punishment/redress in the event of breach.

  14.  It follows that the existence of a judicial system which determines liability against a State and/or as against the individuals responsible for human rights breaches is an important facet in ensuring that rights are protected.

  15.  It is a fundamental aspect of the Rule of Law that liability must be allied to an objective and impartial standard applied judicially. Inconsistency (or failure) in the application of international law between crimes of Genocide, or torture, serves only to bring the law into disrepute.

  16.  It is no part of this submission to question whether there is a proper distinction to be drawn between criminal liability or restitutionary remedy as part of the armoury of rights protection. It is however submitted that the Committee should be anxious to ensure that in "securing the human rights of British Citizens and others overseas" the FCO cannot and should not adopt an approach which assumes that "after-the-event" remedies are sufficient.

  17.  Why? The answer is complex, but can be broken down as follows:

Diplomacy which has as its substance a request that a state perpetrating an abuse desists, is not likely to provide effective remedy and should not be regarded as necessarily sufficient

  18.  The traditional (historic) weapons of diplomacy—including protest, ministerial statements and meetings with Ambassadors undoubtedly take time to prepare and are often well intentioned. Historically they are probably allied to the outmoded view that the citizen is the property of his state. However beloved of Diplomats, they are ill-fashioned to afford practical protection in the modern world.

  19.  The premise of the Committee's present inquiry is to ensure that the FCO conditions its response to Human Rights abuses so as to secure effective respect for human rights from the point of view of the people affected by abuses.

  20.  Practical help can be achieved in fact. In the recent past, the United Kingdom Government correctly identified that there was genocide within the Balkans. This violence was inflicted directly (in massacres) and included bombing of innocent civilians.

  21.  Why was it Genocide? In International Law Genocide is defined as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

    (a) Killing members of the group.

    (b) Causing serious bodily or mental harm to members of the group.

    (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;…"

  22.  What was done? Although initial justifications for the use of force in the Balkans were posited upon the need to quash terrorism and internal insurrection, this was a sham. External armed intervention was necessary to stop its completion. Nothing less was sufficient. The Genocide was stopped, but only after a terrible price was paid by many.

  23.  By contrast to the Balkans, the UK response to the situation in Sri Lanka has been inadequate. However well intentioned, it has failed to afford practical protection against genocide.

It is misconceived to equate legal remedies after the event with protection which could or should prevent breach

  24.  Certain rights—for example, to be free from genocide—are not to be identified with any individual. If these rights are breached by the killing of members of a group, the victims have little possibility of remedy. As a matter of fact, the members of a group subject to genocide are unlikely to be able to protect themselves against it.

  25.  It follows that the primary responsibility for action to prevent such an abuse of rights must lie within the province of States. If the approach of states is based on anything less than "zero tolerance" of the prospect of Genocide, irreparable harm is risked. In this context the whole of the world must be seen as the UK's "back yard".

The international judicial system is insufficiently developed to meet the immediate challenge of an imminent and wholesale breach of human rights—such as Genocide

  26.  Whilst within the democracies which are signatory to the European Convention on Human Rights and Fundamental Freedoms (ECHRFF), there is a relatively simple (albeit slow) system of judicial scrutiny to ensure compliance with the standards set by that Treaty. The legal framework within that treaty is novel in so far as it affords the right of individual petition against a state. This system does not in practice engender lengthy debates about its jurisdiction to act.

  27.  If individuals had not been afforded what was then a novel right to petition the European Court of Human Rights directly the right of petition had been limited to Member States. If it had been so, the Court would have had little to do. Actions launched by Member States to protect rights against other states signatory have been few. Instead the ECHRFF has allowed individuals to act to safeguard their rights. This has contributed to the efficacy of that body and the promotion of human rights and the Rule of Law generally.

  28.  Beyond Europe, and in areas where concerns exist about the abuse of the most fundamental Human Rights, protection such as that afforded by the ECHRFF is generally lacking. Although since 1982 (Cyprus v. Turkey) the protection afforded by the ECHRFF has been extended to allow it some scope beyond its strictly geographic borders it is impotent in the face of certain abuses perpetrated by States which are not signatory to it.

  29.  The legal vacuum beyond the ECHRFF is caused in part by the fact that as a matter of Public International Law by reason of the fact that individuals have no general right of petition to an International Court, or the International Court of Justice (ICJ).

  30.  This protection deficit is not made up by States themselves being disposed to bringing actions in defence of others' rights. Whilst such action is difficult, it is not impossible.

  31.  The difficulties with the ICJ being more readily deployed as a mechanism for ensuring international justice were perhaps acknowledged by its distinguished President. In her address to the Sixth Committee of the General Assembly of the United Nations, given on 31 October 2008, the President of the Court, HE Dame Rosalyn Higgins said:

    "Virtually all the great international institutions of the world have, as a concomitant of membership, the obligation to accept the compulsory jurisdiction of the Court of that institution. It is so with the Council of Europe, the European Union, and the World Trade Organization. But membership of the United Nations does not carry this obligation. Referral of disputes to its primary judicial organ is optional, and based upon the consent of both parties. The United Nations stands almost alone in this state of affairs, and all the many suggestions for Charter reform made in recent years by the Secretary-General, and by Member States, there has not been the faintest suggestion that this should change.

    This requirement of mutual consent in each and every case has necessarily meant that the Court is too often examining objections to its own jurisdiction, rather than addressing the serious substantive problems at issue." (emphasis added)

  32.  It is well known that the International Court has on occasion been called upon in cases which involve serious questions associated with the protection of Human Rights. However, it is submitted that the overwhelming majority of cases do not involve such issues. It follows that the limited number of opportunities in which the Court has been invited to act are minor when compared with the frequency with which such issues arise. Its lack of use and its limited capacity to ensure effective response further perpetuates a lack of protection.

  33.  In the context of Genocide responses in international law have been ex post facto and singularly failed to prevent large scale atrocity.

  34.  The Committee is invited to investigate this further with a view to adopting recommendations that the United Kingdom FCO strives to positively develop change in the prevailing international legal framework or culture in these respects.

The jurisprudence of the United Kingdom has been slow to expand so as to allow individuals to protect rights in the circumstances beyond the scope of the ECHRFF

  35.  Historically the United Kingdom's judiciary was reluctant to permit challenge to matters which fell within the sphere of Foreign Policy. Whilst this reluctance has diminished to some degree over recent years, on balance it is submitted that the deferential approach of the domestic Courts has inhibited the effective protection of Human Rights within the United Kingdom. The Committee is referred to the extra-judicial observations of Lord Justice Richards in a lecture entitled "The International Dimension of Judicial Review" (2006) as a useful review of the development of the law in this context.

  36.  It is submitted when coupled with the "deference" of the Courts to challenges to policy or decision making, the absence of effective remedies after the event serves only to diminish the framework by which human rights are protected.

  37.  A simple example comes to mind—the decision of the Judicial Committee of the House of Lords in Jones v. Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudia (the Kingdom of Saudi Arabia) and others [2006] UKHL 26. The Committee there upheld the Respondent's claim to sovereign immunity so as to prevent the Claimants from recovering damages against the very State it alleged had used torture against them.

  38.  Whether that decision is right, or wrong on its merits, is a matter of argument. What is clear is that whilst it remains the Law, UK citizens who have been tortured will not be able to obtain satisfaction within the UK Courts as against the states which perpetrated that torture. Satisfaction against private individuals is hardly likely to be sufficient.

  39.  Efforts to correct the effects of Jones by Torture (Damages) Bills are to be applauded. It should no longer be the case that UK law effectively permits a State responsible for torture to enjoy immunity from the potential liability in damages to those they have wronged. Calling States which engage in or permit torture to financial account should provide an incentive for them to avoid their barbaric practice.

  40.  One can and should question in the context of all issues under consideration by the Committee whether (or how) the FCO has sought to use domestic litigation such as the Proceeds of Crime Act 2002 to restrain the funds of individuals associated with those involved in torture or genocide as a weapon against such abuses.

THE BENEFITS OF A CHANGE OF APPROACH

  41.  Adopting an approach which ensures the express incorporation of Human Rights norms in legislation which governs Foreign Policy would be apt to promote the objective identified by the Committee.

  42.  In the United States certain Federal Laws are enacted so as to include a positive requirement upon the Executive to avoid by its actions assisting States in which the governments engage in a gross pattern of internationally recognised human rights, such as torture or cruel inhuman or degrading treatment. [For example, US Statute 22 U.S.C. 262d]

  43.  Placing such an obligation as is encapsulated within the US legislation referred to above upon a statutory footing within the United Kingdom would represent a positive step toward affording the protections of the type under investigation by the Committee.

  44.  One could surmise that such legislation would have provided clear guidance to the relevant authorities that United Kingdom law prevented it from acquiescing in torture or extra-ordinary rendition whether it was to be carried out by third party states or private agents employed by them. It would have allowed for judicial scrutiny at a much earlier stage.

  45.  Any counter-argument that imposing such a statutory obligation would be apt to expose the Government to unnecessary litigation is superficial, and unlikely to be well-founded in fact. No domestic government should seek to justify a policy or decision on the basis that it entailed or permitted a breach of fundamental rights. In turn, foreign powers would be aware that a fundamental requirement of dealing with the UK (or continuing to do so) would be dependent on adhering to proper standards in respecting human rights, or the UK would not be able to engage.

  46.  The Committee is respectfully invited to inquire further into this aspect of affording protection. It is referred to the document Tamils against Genocide v. Timothy Geithner (and others) in this context.[141] This document is the pleading in an extant case before the United States District Court in the District of Colombia. It evinces both the legislative and factual background which gives rise to the case.

  47.  The Committee is further invited to consider the document attached to this submission which is an indictment presently before the Grand Jury in the Central District of California alleging war crimes against two named Sri Lankan nationals.[142] The document evinces the legal process against them, but also sets out the evidence of Genocide which underpins the case study at the end of this submission and has been referred to above.

FURTHER MATERIAL

  48.  The Committee is invited to receive oral evidence in due course from the following:

    a. Professor Francis Boyle, Professor of International Law at the University of Illinois. Professor Boyle instituted Proceedings before the ICJ on behalf of Bosnia Herzegovina in matters touching upon the Genocide in the Balkans.

    b. Mr. Virendra Sharma, MP.

    c. Ms. Karen Parker—Attorney-at-law.

    d. Mr. Bruce Fein—Attorney-at-law. (Counsel in the case referred to at paragraph 46 herein)

  49.  The opportunity to submit further material to the Committee in the course of its investigations would be welcomed. Such further assistance as can be offered to the Committee will be made available.

24 April 2009








141   Not published. Back

142   Not published. Back


 
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