Blood Lines: When Borders Become Excuses

Invoking the Responsibility to Protect in Sri Lanka

by Tasha Manoranjan, December 12, 2008

Introduction

800,000 killed in Rwanda in 1994; 8,000 killed at Srebrenica, a United Nations “safe area” in 1995; over 200,000 killed in Sudan since 2003; over 125,000 killed in Sri Lanka since 1983; over 5.4 million killed in the Democratic Republic of Congo since 1998 (Power xv). The term “genocide” has not officially been affixed to all of the above conflicts; however, the black-and-white body count reflects the alarming scope of each crisis. Each case is at a different stage in its crisis evolution, ranging from escalating (Sri Lanka) to simmering (DRC, Sudan) to rehabilitation (Rwanda, Bosnia). However, each case provides insight into the opportunities and obstacles in international responses to mass suffering.

Currently, the international system, constructed by states for states, privileges state sovereignty and territorial integrity over intervention in mass atrocity crimes. The impunity granted through sovereignty began with the 1648 Treaty of Westphalia, which identified and sanctified political units with a clearly-defined territory. Since then, sovereignty has been considered sacrosanct within the international community. However, the Responsibility to Protect (R2P) is gradually becoming a new international norm, one that revolutionizes thinking regarding state sovereignty and mass atrocity crimes.

R2P prioritizes humanity over sovereignty, arguing that states have a responsibility to protect its people from mass atrocity. When states are unable or unwilling to protect its populace, this responsibility is shifted to international community. This principle thereby acts as an impediment to impunity for state-sponsored attacks against its populace. I will apply the concept of R2P to an increasingly-intractable conflict: Sri Lanka. Sri Lanka descended back into war this year, after the Sri Lankan government unilaterally withdrew from the 2002 Ceasefire Agreement in January. Since then, the government has launched a no-holds-barred military onslaught against territory controlled by the Liberation Tigers of Tamil Eelam. The military offensive has involved constant, indiscriminate aerial bombardment and artillery shelling against Tamil civilians and combatants. The military’s willful disregard for the lives of innocent Tamils, in conjunction with continued impunity for “disappearances” and attacks on Tamil journalists, parliamentarians, aid workers, religious figures and community leaders, constitutes a ripe case for the invocation of the Responsibility to Protect. This paper will utilize the Report of the International Commission on Intervention and State Sovereignty, other writings and statements regarding R2P, and human rights reports regarding Sri Lanka to argue for the application of R2P to Sri Lanka.

Beyond Sovereignty to Responsibility: The Responsibility to Protect

The international system is structured to entitle states to impunity within their borders, under the benign nomenclature of “sovereignty.” Sovereignty enables states to determine for themselves whether human rights are indeed universal, or whether international standards and conventions can be omitted from their jurisprudence and conduct. Michael Walzer describes the immunity states enjoy from international scrutiny and oversight: Walzer argues that states decide for themselves how to conduct a war against a guerilla insurgency within their borders. This allows states to ignore concepts such as noncombatant immunity:

[States] not only fought when they wanted; they fought how they wanted, returning to the old Roman maxim that held war to be a lawless activity: inter arma silent leges – which, again, was taken to mean that there was no law above or beyond the decrees of the state; conventional restrains on the conduct of war could always be overridden for the sake of victory. Arguments about justice were treated as a kind of moralizing, inappropriate to the anarchic conditions of international society (Walzer 5).

Walzer argues that the centuries-old state system allowed the goal of victory in internal warfare to override principles of justice. Gareth Evans maintains a similar argument, stating that Westphalian principles of sovereignty “effectively immunized [political leaders] from any external discipline they might conceivably have faced for either perpetrating such [atrocity] crimes against their own people or allowing others to commit them while they stood by” (Evans, The Responsibility to Protect 16). Since the end of the Cold War, the international community was faced with a dilemma of how to reconcile principles of sovereignty with the desire to intervene in crimes that shocked the conscience of humanity (ibid). The Canadian government-sponsored International Commission on Intervention and State Sovereignty (ICISS) provided a solution: the Responsibility to Protect.

The Responsibility to Protect (R2P) is a principle capable of revolutionizing the response of the international community to mass atrocity crimes. In the most recent tragedies of genocide, the international community has been paralyzed by concerns of state sovereignty and territorial integrity, cloaking inaction in the face of egregious human suffering with these political catchphrases (Evans and Sahnoun, “The Responsibility to Protect” n.p.). Intervention on behalf of the Tutsis, Bosnians or Darfuris was inhibited by concern that such intervention would violate the norms of the international system, which hold state sovereignty paramount – even above mass atrocity crimes. In the ensuing inaction, over one million lives have been lost.

R2P offers an escape from this dialectical debate that enables the slaughter of innocents. R2P holds that every state bears a responsibility to protect its populace, and when it fails in this responsibility – or directly contradicts this by engaging in acts to exterminate in part or in whole any group within its populace – this responsibility falls to the international community (Evans, The Responsibility to Protect 40-41). The world then has an obligation to act on behalf of the victims. R2P shifts the debate over intervention from concerns over territorial integrity to where it should be: the need to protect innocent civilians from state-sponsored persecution.

United Nations Secretary General Kofi Annan posed a question to the Millennium General Assembly in April 2000, asking “If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?” (Evans, The Responsibility to Protect 31). This challenge was the catalyst for the International Commission on Intervention and State Sovereignty, which was launched in September 2000, and published a report in December 2001 introducing and championing the principle of the Responsibility to Protect.

The change from a “right” to intervene to a “responsibility” to protect reflects a substantial shift in the concept of international intervention. Instead of arguing that states have the capacity – the right – to intervene for the well-being of humanity, R2P asserts that states have the obligation – the responsibility – to intervene when necessary. This changes the entire tone and emphasis of international intervention. The theory of R2P was adopted unanimously at the General Assembly of the 2005 World Summit. Evans describes this event:

Heads of state and government from 150 countries, meeting as the UN General Assembly, unanimously accepted not only that that sovereign states have a very explicit responsibility to protect their own people from genocide, war crimes, ethnic cleansing and crimes against humanity, but when they manifestly fail in that responsibility – as a result of either incapacity or ill-will – the responsibility falls upon the wider international community to take whatever action is appropriate, including in the last resort, and if the Security Council agrees, military action (Evans, “The Responsibility to Protect: an idea that has come and gone?” n.p.).

The R2P involves much more than military intervention, which it views as the last resort. R2P includes three specific responsibilities: the responsibility to prevent – to address root and direct causes of internal conflict; the responsibility to react – to respond with proportionate measures to “situations of compelling human need”; and the responsibility to rebuild – to provide assistance with recovery, reconstruction, and reconciliation (ICISS xi). The ICISS argued that prevention is the most important aspect of R2P, and that “prevention options should always be exhausted before intervention is contemplated” (ibid).

The controversial aspect of R2P surrounds the occasion when states “manifestly fail” in their responsibility to protect their own people – when military intervention without the consent of the offending state is deemed acceptable. Evans expressed surprise that “Within just four years of the first articulation of the concept – a mere blink of an eye in the history of ideas – consensus seemed to have been reached on how to resolve one of the most difficult and divisive international relations issues of our,or any other, time” (Evans, “The Responsibility to Protect: an idea that has come and gone?” 2008). ICISS enumerated specific principles that must be followed in military intervention, such as the just cause threshold to stop ongoing or imminent large-scale loss of life or ethnic cleansing, and precautionary principles such as utilizing proportional means with the right intention and being an option of last resort (ICISS xii).

R2P is intended to apply to mass atrocity crimes, which refer to “genocide, war crimes, ethnic cleansing, and crimes against humanity” (Evans, The Responsibility to Protect 11). These terms draw their definitions from the Rome Statute of the International Criminal Court, and present the framework for when R2P can be utilized. A full exposition of each of these terms is outside the scope of this paper, but for the purposes of the case study of Sri Lanka, a definition of “war crimes” and “crimes against humanity” is necessary. Article 8 of the Rome Statute of the ICC defines war crimes as “grave breaches of the Geneva Conventions of 12 August 1949” and specifically lists eight acts such as “willful killing; torture or inhumane treatment; willfully causing great suffering, or serious injury to body or health” (Rome Statute Article 8). Article 7 of the Rome Statute defines crimes against humanity as 11 acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Rome Statute Article 7). These acts include murder, torture, deportation, unlawful imprisonment, enforced disappearance, and “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law” (ibid). These definitions provide a framework for the application of R2P to Sri Lanka.

Evans stated that there are “some seventy different situations that can reasonably be described as ones of actual or potential deadly conflict” (Evans, The Responsibility to Protect 71). He emphasized the need to identify which conflicts merit action by the international community, and concludes there are no more than a dozen countries that can reasonably be considered R2P situations. He describes when a country is an R2P situation: “where mass atrocity crimes … are actually occurring or imminently about to occur, or where the situation could deteriorate to this extent in the medium or longer term unless appropriate preventive measures are taken” (Evans, The Responsibility to Protect 72). Evans explicitly includes Sri Lanka on a “watch list” with 10 other countries to call attention to states where certain groups of people are “at significant risk of becoming victims of new mass atrocity crimes if efforts are not made to put in place, or sustain, appropriate preventive measures” (Evans, The Responsibility to Protect 76). Evans wrote this in mid-2008; unfortunately since then, conditions have further deteriorated in Sri Lanka and merit the immediate application of R2P.

Case Study: Applying R2P to Sri Lanka

percent Sinhalese, 13 percent Sri Lankan Tamils, 6 percent Indian Tamils, and 7 percent Moors (de Votta 107). British colonial policies allegedly privileged Tamils in administrative positions, which sparked a backlash post-independence (de Votta 113). In rising waves of Sinhala ethno-chauvinism, policies were passed to disenfranchise Indian Tamils (1949, 1950), privilege Sinhalese as the national language (1956) and promote Sinhalese people in education and employment (1972) (Ganguly 916). Also in 1972, the Constitution was amended and the country’s name changed from “Ceylon” to Buddhist-Pali “Sri Lanka” or “Holy Land” (Whitaker 49). This reflects the religious component of the ethnic conflict in Sri Lanka: the Tamil minority is predominantly Hindu, whereas the Sinhalese majority is overwhelmingly Buddhist. Sri Lanka’s 1972 Constitution declared the role of the state in protecting Buddhism: Chapter 2, Article 9 says “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism” (de Votta 131). This led to charges that the focus of the Sri Lankan state was to protect the interests of the majority Sinhala Buddhists (de Alwis 255). Sri Lanka still presents a hostile environment for secularism, as seen in a recent attempt by the Sri Lankan Parliament to legally prohibit people from converting from Buddhism to another religion (NBC News n.p.).

Prejudice against the Tamil minority spans beyond the political sphere. Anti-Tamil sentiment is fuelled by state-funded education, where fifth graders across the country read and recite their textbook’s historical stories of ancient Sinhala kings nobly vanquishing the Tamil kingdom, where the “hero’s loyalty to the trinity of ‘country, race, religion’ is defined through opposition to and struggle against the Tamils” (de Alwis 259). Communal tensions between Tamils and Sinhalese remain high, steeped in a history of sporadic outbursts of rioting and looting which began in 1956, with its pinnacle in “Black July” 1983, and continue to occur today (Whitaker 76).

This historical background lays the foundation for Sri Lanka’s current crisis, and serves to demonstrate the structural violence of the Sri Lankan state against its Tamil citizens. Further historical analysis of the ethnic conflict is beyond the scope of this paper. Subsequent analysis of recent events further demonstrates the absence of will on the part of the Sri Lankan government to protect Tamil civilians, and transfers this responsibility to the international community through the application of R2P.

Evans delivered a speech in Colombo in July 2007 entitled “The Limits of State Sovereignty: The Responsibility to Protect,” in which he discussed the potential for applying R2P to Sri Lanka. He stated that “recent Sri Lankan history offers all-too-many examples of large-scale atrocities, mass graves, serious war crimes and ethnic cleansing” (Evans, “Limits of State Sovereignty” n.p.). He cited examples of repeated displacement, indiscriminate shelling and bombing. However, he continued and said, “the recent violence has not crossed the boundary into mass atrocity or obvious genocide, war crimes, ethnic cleansing, or crimes against humanity. The violence has been contained just this side of full-scale disaster and internationally-recognized catastrophe” (ibid). Evans stated that Sri Lanka was:

An R2P situation … it may not be one where large-scale atrocity crimes — Cambodia-style, Rwanda-style, Srebrenica-style, Kosovo-style — are occurring right now, or immediately about to occur, but it is certainly a situation which is capable of deteriorating to that extent. So it is an R2P situation which demands preventive action, by the Sri Lankan government itself, but with the help and support of the wider international community, to ensure that further deterioration does not occur (ibid).

Evans described some preventive measures the GoSL should adopt to address the unfolding “R2P situation”: end the impunity for human rights violations committed by government personnel, strengthen the government’s policing and judicial capabilities, allow independent United Nations human rights monitors into the country, and prevent the war from spreading into the northern province (ibid). His advice went unheeded and the Sri Lankan government did not adopt Evans’ suggestions. At the time of Evans’ speech, the war was largely being fought in the eastern province, and Evans added that if the war moved into LTTE-held areas in the north, “the impact on civilians is almost certain to be devastating” (ibid). Unfortunately, since the time of Evans’ speech, the war has shifted to the north and the impact has indeed been debilitating for civilians there.

Following criticism of Evans’ Colombo speech, in which Evans was called a neo-imperialist (Evans, The Responsibility to Protect 4), the International Crisis Group released a statement that Sri Lanka was “a case where the responsibility to protect was solely a matter of prevention” (ICG n.p.).  Unfortunately, subsequent events in Sri Lanka merit elevation from prevention to reaction – the more active phase of R2P which responds to an ongoing crisis.

Sri Lanka’s current president, Mahinda Rajapakse, was elected in November 2005 on the basis of a hard-line, pro-war platform (Rhodes n.p.). He resolved early and often that he would end Sri Lanka’s decades-long conflict through a military solution: exterminating the Tamil Tigers (ibid). His term has fulfilled expectations of a re-militarized Sri Lanka: he appointed a “hawkish” prime minister who has “pushed for crushing Tamil rebels” (IHT n.p.), and a “hard-line” army general (BBC n.p.). This past year has been especially bloody as the ceasefire ended and President Rajapakse’s military hawks resumed the conflict full scale.

Sri Lanka descended back into war on January 2, 2008, when the Government of Sri Lanka (GoSL) officially withdrew from the 2002 Ceasefire Agreement with the Liberation Tigers of Tamil Eelam (LTTE). After the Sri Lankan government unilaterally abrogated the CFA, Amnesty International released a report condemning the Sri Lankan government and other groups for carrying out violence against civilians. The report accurately foreshadowed that “a pattern of indiscriminate attacks by the Sri Lankan army will intensify and contribute further to spiraling civilian casualties” (Amnesty International, “Right to Life of Civilians” n.p.). The North East Secretariat on Human Rights (NESOHR), a local human rights watchdog group, has reported “extensive aerial bombing” of civilian areas since the end of the ceasefire (NESOHR 1). The Sri Lankan government’s bombing campaign against civilian areas constitutes war crimes because these attacks “willfully cause great suffering, or serious injury to body or health,” which fulfill the Rome Statute definition of war crimes (Rome Statute Article 8).  The aerial bombardment and shelling campaign also meets the definition of crimes against humanity because it is “a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Rome Statute Article 7).

Over 300,000 Tamils have been internally displaced as they flee from the intensive military onslaught, aerial bombardment and artillery shelling (Amnesty International, “Sri Lankan government must act now” n.p.). In conjunction with the military campaign, the Sri Lankan government ordered international aid organizations to evacuate the Vanni region in September (Amnesty International, “Sri Lankan government must act now” n.p.). Paul O’Callaghan from the Australian Council for International Development, accurately foreshadowed a “bloodbath” after aid agencies were forced to withdraw (Council for International Development, n.p.).

When United Nations staff prepared to evacuate the region, refugees physically planted themselves in the streets to block their exit (BBC, “’Pain’ of Sri Lanka aid pullout” n.p.). One anonymous aid worker told the BBC that refugees protested outside their office, shouting “Don’t Leave, Don’t Leave” (ibid). The aid worker said, “It was the prospect of our physical departure that terrified them. With no international presence and no witness to the conflict, they believed that many atrocities would occur and no one would see this” (ibid). Since international aid organizations were forced to leave, there is minimal international reporting from the region.

Amnesty International recently released an urgent plea for greater humanitarian access to the refugees languishing in the northern war zone. Amnesty said, “The Sri Lankan government must immediately end its policy of blocking humanitarian aid needed to reach an estimated 300,000 displaced people in the Wanni region of northern Sri Lanka” (Amnesty International, “Sri Lankan government must act now” n.p.). Human Rights Watch made a similar plea after Cyclone Nisha displaced another 60,000 - 70,000 people. Brad Adams, Asia director at HRW said, “The Sri Lankan government should stop playing games with aid organizations and let them get on with their life-saving work.... Tens of thousands of people in flooded areas of the Vanni are without adequate shelter and need help now” (HRW, “Allow Aid Groups to Help Cyclone Victims” n.p.). The Sri Lankan government’s decision to continue to restrict international aid work in the besieged region exemplifies its intent to cause great suffering of civilians, as evidenced by the calls from Amnesty and HRW, and thereby constitutes a war crime.

The Sri Lankan government’s human rights violations are not isolated to territory controlled by the Liberation Tigers of Tamil Eelam. HRW has sharply criticized President Rajapakse for becoming “one of the world's worst perpetrators of enforced disappearances” (HRW, “‘Disappearances’ by Security Forces a National Crisis” n.p.). HRW considered extrajudicial killings and state-sponsored abductions to be so endemic in Sri Lanka to constitute a “national crisis” (ibid). The United Nations Working Group on Enforced and Involuntary Disappearances reported that Sri Lanka had more disappearances in 2006 and 2007 than any other country in the world (ibid). “Enforced disappearance” is explicitly listed as a crime against humanity (Rome Statute Article 7). Beyond the threat of state-sponsored disappearances, Sri Lanka faces abysmal conditions for journalists and humanitarian aid workers. Journalists face harassment, assault, and abduction throughout the island; Reporters Without Borders ranked Sri Lanka as 165 out of 173 countries for its lack of media freedom, which was “the lowest press freedom rating of any democratic country worldwide” (Reporters Without Borders n.p.). Humanitarian and human rights workers face similar conditions: United Nations Under-Secretary General for Humanitarian Affairs John Holmes said Sri Lanka was “one of the most dangerous places for aid workers in the world” (HRW, “Launch of HRW Report: ‘Return to War’” n.p.). This provides a glimpse into the escalating human rights and humanitarian crises facing Sri Lanka, and shows the existence of crimes against humanity being committed in Sri Lanka.

Conclusion

Sri Lanka is currently listed as one of eight countries on “Red Alert” for the outbreak of genocide, according to the Genocide Prevention Project (Edwards n.p.). There has been some talk by Indian politicians to reinstate a ceasefire between the GoSL and the LTTE, but such efforts have been sharply repudiated by Sri Lanka Army General Sarath Fonseka, who derisively called the Indian politicians “jokers” (BBC, “S Lanka ‘joker’ jibe angers India” n.p.). A ceasefire is clearly absent in the plans of Sri Lanka’s leaders. Even if attempts toward a ceasefire were made, within such a hawkish administration, they would be superficial and disingenuous. Discussions of a possible ceasefire would also benefit from heeding lessons learned from past efforts. Norway’s involvement in brokering a ceasefire between the GoSL and the LTTE was explicitly hampered by its inability to monitor and enforce the agreement. Norwegian peace envoy Erik Solheim said, “Norway has no way of imposing peace in Sri Lanka, we have no marines to send, we are not a military power, we do not even have any meaningful way of putting diplomatic pressure on them. We can only assist them if they so wish” (Martin 104). Since the previous ceasefire was feckless and a new ceasefire has been explicitly refused by the Sri Lankan government, R2P must be invoked in Sri Lanka.

The international community, like all political bodies, upholds the interests of its constituents. Since the international community is composed of and coordinated by nation-states, its support for the interests of states is understandable. Unfortunately, this provides little forum and opportunity for citizens whose own states attack them. As the ICISS stated, “what is at stake here is not making the world safe for big powers, or trampling over the sovereign rights of small ones, but delivering practical protection for ordinary people, at risk of their lives, because their states are unwilling or unable to protect them” (ICISS 11). Though R2P has already been adopted by the United Nations General Assembly, the structural framework for implementing R2P is still being constructed. ICISS identified a range of options within its arsenal for operationalizing R2P, including diplomatic, economic, legal, and military options (ICISS 23). A specific recommendation for which option is best suited for Sri Lanka is outside the scope of this paper; it suffices that a compelling case for R2P’s applicability to Sri Lanka has been made. For the sake of the 300,000 refugees in northern Sri Lanka, subsisting in a shrinking territory, it is urgent that R2P be implemented immediately.

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