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
| 
