by Kalana Senaratne
The speech titled ‘National Conflict and Transnational Consequences’ delivered by the Sri Lankan External Affairs Minister, Prof. GL Peiris contains a number of important issues relating to international law. Prof. Peiris pointed out that “the time has come to take a fresh look at the orthodox conceptions and assumptions of international law.”
One issue relates to the so-called right to preemptive self-defence. Prof. Peiris stresses the importance of sending an unambiguous message to terrorists anywhere in the world - that States can, and will, combat terror. This is important. Prof. Peiris refers to a speech delivered by the Indian Prime Minister Manmohan Singh wherein the PM had raised a similar argument. While Prof. Peiris does not mention what that speech was, it is believed he was referring to the speech delivered by PM Singh on 22 October 2010 at the Golden Jubilee of the National Defence College, India. In that, PM Singh states the following: “We have to be prepared to deal with threats to our security from non-state actors and groups … Non-state actors are becoming increasingly fused and employing the best technologies to target open and democratic societies. We have therefore to modernize our defence doctrines to respond to new and non-traditional threats to our national security.”
Within this context, Prof. Peiris refers to the importance of the “right to preemptive action”, stating that “the right of self-defence in national law does not arise only after you have been attacked.” He seems to be arguing in favour of the right to self-defence “when there is reasonable apprehension of danger,” and argues that this principle “needs to be developed and applied in situations involving conflicts between the State and insurgent groups.” An important suggestion, undoubtedly. However, given that the ‘preemptive self-defence’ can be easily abused by any State, I believe Prof. Peiris would also stress that a State should ensure, for instance, that firstly, there needs to be convincing evidence pointing to a serious and significant threat to the people within the State and secondly, that such preemptive action will always be guided by the rule of proportionality.
However, this doctrine of preemptive self-defence is a problematic one. Prof. Peiris states that “we don’t believe in preemptive action outside our territorial borders”, which one believes is a reference to the ‘Bush doctrine’ of preemptive strikes launched against other States. Yet, there is a critical question that Sri Lanka would now need to answer. What is it?
Sri Lanka, like India, believes in the existence of dangerous and sophisticated non-State actors; a problem faced by many States in Asia. Therefore, States should have a domestic law right of preemptive self-defence, argues Prof. Peiris. Up to this point, there is no serious problem in the argument.
But, a State that believes in the existence of such sophisticated non-State actors would also need to agree that such groups would have the capacity to carry out dangerous cross-border attacks. And here one confronts a controversial question. If the threat posed by non-State actors is such, and if a State has a right to preemptive self-defence as a matter of domestic law, what will Sri Lanka’s position be under the following situation, whereby terrorist group ‘X’ which is based in State ‘A’ tries to launch an attack on State ‘B’ and State ‘A’ is seen to be unwilling or unable to take any action against group ‘X’? (This is a problem that States such as India, Pakistan and Afghanistan face, in particular).
In such situations, would Sri Lanka need to support the controversial right to preemptive self-defence as a right in international law too? Sri Lanka would need to take a firm stance on this difficult and controversial question, now that it is seen to be strongly promoting the domestic law right of preemptive self-defence. Under the above type of extreme case, would Sri Lanka consider anticipatory self-defence lawful, as long as a State follows certain strict conditions (eg. compelling evidence of an imminent and inevitable attack, proportionality, the non-pursuance of territorial occupation, immediate reporting to the Security Council etc., noted by Prof. Antonio Cassese for instance)? Also, what would Sri Lanka’s position be as a member of the NAM group which rejects this notion of preemptive self-defence in general?
Another area of the law which needs a fresh outlook, according to Prof Peiris, is the international law governing the reception of refugees. He believes that the “traditional corpus of international law does not work and does not adequately serve the international community at this time.” The problem that is worrying Prof Peiris is the problem of refugees; i.e. people belonging to the Tamil community, in particular, fleeing the country, “claiming that they feared for their lives or their safety”, especially since the end of the war.
Prof. Peiris fears that such people are in fact “economic refugees” who were “going to improve their lot in life” on a “fictitious basis.” Prof. Peiris raises a very important point when he states that while Sri Lanka does not have any quarrel with people going to improve their lot, what Sri Lanka rejects is that fictitious allegation made by such people – that there is systemic discrimination against them and even violence and intimidation which makes their lives impossible.
On the one hand, these are very valid issues. States do need to think hard before accepting such people, since blind acceptance without thorough scrutiny of the background of some of those people claiming refugee status, could create enormous social problems within those States; especially if they have been clearly involved in illegal and/or terrorist activity. States should realize that this is one way in which the spread of terrorism and other criminal activity associated with those involved in terrorist activity could take place. The law generally tends to view those claiming refugee status with some sympathy and rightfully so (if they are genuine cases), but there are dangers involved if the laws are blind to problems emanating from refugees too.
On the other hand, it is believed that the Government of Sri Lanka should be equally, or more, concerned about the allegations leveled against it, and seek ways of improving the lot of these people; by protecting the fundamental rights and freedoms of people, resettlement, etc. Where people are made to feel, for instance, that proper investigations and inquiries are not been conducted when human rights violations take place (in the form of abductions and disappearances etc.), a sense of hopelessness creeps in, and people start to lose faith in the ability and willingness of the government and the State to protect its own people. One only needs to take note of the recent LLRC sessions held in Jaffna, and the problems, concerns and grievances raised by the people. The Government should be seriously able to provide meaningful solutions to the problems of the people.
Unless there is a strong commitment to protect the rights of people, and unless there is strong and irrefutable evidence to suggest that there is a significant improvement in terms of protecting the rights of its citizens, Sri Lanka will continue to witness people leaving the country, seeking refugee status. The fear of being persecuted does not simply disappear with the end of the war. Persecution could take place for a number of reasons, for holding dissenting political opinion for instance. Such fears could trouble people belonging to any ethnic community, in any part of the country (The protection of journalists, in this regard, is a crucial issue).
It is the very discipline, then, which is sought to be modified and developed – international law – that could be utilized to address some of these problems. A very serious effort needs to be made by the government to ensure that Sri Lanka respects its international obligations arising as a consequence of being a State Party to a number of very important international conventions (especially human rights conventions). It needs to be stressed here that while the effort made to develop and modify the existing body of rules and principles of international law is praiseworthy, a more genuine and determined effort needs to be made to ensure that there is domestic implementation of relevant conventions and other international instruments (through the enactment of implementing legislation which give effect to those international laws within the domestic legal system, when and where necessary).
Trying to modernize the current body of international law is an important endeavor, but implementing the existing principles and rules of international law which are aimed at protecting the lives of people is absolutely essential. Prof. Peiris, as an eminent legal scholar/foreign minister, therefore has an important task before him: to ensure that Sri Lanka not only plays a significant role in modifying international law, but it modifies its own image and stands out as a responsible State which respects and promotes the implementation of international law; a State which is far more serious about its responsibility to protect its own people.
(Kalana Senaratne is a postgraduate research student at the University of Hong Kong)