Opinion of the Right of Intervention by the British Government

In the humanitarian catastrophe affecting Tamils in Sri Lanka

by Prof. M Sornarajah, April 12, 2009

I have been asked by some British citizens of Tamil origin to give an opinion on the status of the British Government to intervene in the present humanitarian crisis caused in Sri Lanka by the shelling of safety zones declared by the Government of Sri Lanka by the Sri Lanka armed forces and the indiscriminate bombing of Tamil civilians. This shelling, as well as other indiscriminate targeting of objects, has resulted in massive civilian casualties. The extent of the duty to protect the civilians caught up in the hostilities and the competence of the British Government to provide such protection through intervention are the subjects of this opinion...

The British Government has not traditionally subscribed to the notion that a state may intervene in order to prevent humanitarian catastrophes in other states. But, the British Government reversed this policy in 1998 just before the NATO intervention in Kosovo and participated in the NATO intervention. A lachrymose Mr Blair, then Prime Minister, in justifying this change of policy, apologized for not having made a similar intervention in Rwanda to prevent the massacres that took place in that country. After the NATO intervention, the Secretary of State for Defence, justifying the intervention, stated that “in international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken” (Statement reproduced at 1999, Vol.70, British Yearbook of International Law, p.586).

The next year, the Secretary of State for Foreign and Commonwealth Affairs made a statement (19th July 2002) stating that “no one can claim any longer that massive violation of humanitarian law or crimes against humanity fall solely within a state’s domestic jurisdiction.” Mr Robin Cook, the then Secretary at the FCO indicated that Britain had submitted clear principles to the United Nations to guide intervention by the international community. There were six principles in the guidelines. Among the principles he stated, was that “when faced with overwhelming humanitarian catastrophe, which a government has shown it is unwilling or unable to prevent or is actively promoting, the international community should intervene.” At the present moment, there is a humanitarian catastrophe entirely caused by the Government of Sri Lanka. Britain and the international community have a duty to act to prevent the loss of lives as a result of the actions of the Sri Lankan Government.

There is nothing to indicate that the policy of the British Government has changed since this time.  It must be taken that since then the UK policy has been to accept the right of humanitarian intervention, even through forcible means, to put an end to internal civilian suffering caused by a state intent on massacring a part of its population identifiable on the basis of race, language or religion.

There are obvious objections to forcible unilateral humanitarian intervention. The dilemma is that the doctrine could be abused by strong states which would use it to influence political courses in states but, at the same time, it becomes necessary that states not stand by when harrowing incidents of genocidal killings take place. In Bangladesh, Cambodia and Uganda, unilateral interventions took place which the world condoned because the killings in Bangladesh by the Pakistani forces, the massacres of Pol Pot in Cambodia and the ruthlessness of Idi Amin in Uganda had to be brought to an end. The forcible interventions in these incidents by India, Vietnam and Tanzania were silently applauded by the international community. None of these governments sought to justify their actions on the basis of humanitarian intervention. The NATO intervention in Kosovo, however, was justified by the UK and other NATO members on the basis of a principle of humanitarian intervention. The intervention in Kosovo by NATO was necessary because two members of the United Nations Security Council (China and Russia) vetoed United Nations action. Such a veto is to be expected whenever internal massacres are discussed, as both China and Russia have minority problems in Chechnya and Tibet which they do not want to hold out to international scrutiny. Neither do they want to contemplate the future possibility of an intervention to deal with such issues. Collective exercise of forcible humanitarian intervention under United Nations auspices, therefore, remains remote.

It is in the light of the dilemma presented that the international community came up with the idea of the duty to protect.  The duty to protect was promoted largely by Canada and Australia. Two former foreign ministers of these two states, Mr Lloyd Axworthy (Canada) and Mr Gareth Evans (Australia) were instrumental in pushing the idea.  A commission set up by the Canadian Government issued a report on the scope of this right. The idea was to ensure that, whatever the international law position on the principle of humanitarian intervention is, there is a right recognized by the international community to provide assistance to a civilian people who are caught up in the hostilities between the armed forces and insurgents.

The Responsibility to Protect is now well recognized in international law. It results from an international instrument which the General Assembly of the United Nations approved in 2005 at the World Summit. The Responsibility to Protect is a duty every state owes its minorities. The Responsibility requires that the minority not be subjected to atrocities involving genocide or crimes against humanity like torture. Where this duty is violated by the state, it is incumbent on other members of the international community to intervene and ensure that the persecuted group is protected. Such intervention is legitimate in international law. It is opposed only by a few states like China, Russia, Sudan and Zimbabwe, fellow travelers with the government of Sri Lanka and persistent violators of the rights of their own citizens.

It is the duty of the international community to ensure that the devices that it has created are meaningful. In the case of the British Government, its duty is clear in this regard. It, now, subscribes to a principle of humanitarian intervention, which justifies even the use of unilateral armed force in order to achieve humanitarian ends, such as the protection of the civilians caught up in the hostilities in the North of Sri Lanka. Failing the use of this doctrine, it has the duty to ensure their protection as a result of the new doctrine relating to the Responsibility to Protect.

In the case of Britain, its exercise of this duty arises not from its membership of the international community or from a moral duty alone. It bears a historical responsibility in the problem that affects Sri Lanka. The distinguished British political scientist, Bertram Hughes Farmer detailed  in his book, Ceylon: a Divided Nation (Institute of Race Relations, Oxford, 1963), nearly half century ago,  how the British had brought under one rule an island divided on the basis of ethnicity into three kingdoms for the sake of their administrative convenience. They left behind the same system of a single government for an island that had contained three separate kingdoms. He predicted that the constitutional arrangement that the British created on granting independence to Sri Lanka had to break down as it did not give the minorities in Sri Lanka sufficient protection. Much of the blame can be placed at the doors of Britain. Events unfolded exactly as Farmer had predicted.

The unitary government of Sri Lanka came under Sinhala chauvinists, who outdid each other in their racial and religious fanaticism against the minorities, declaring Sinhala the only official language and the peaceful religion of Gautama Buddha, the renouncer of his own kingdom, the state religion. They adopted a national flag of violence, which symbolized the creation myth of the Sinhala race, a lion holding a sword, symbolizing violence against those who opposed Sinhala supremacy. All minorities were excluded from participation in government and as the head of the armed forces declared without being contradicted, Sri Lanka belongs to the Sinhalese and others live in it only upon tolerance. Several pogroms have been unleashed against the Tamils, resulting in a flood of refugees accounting for a large Tamil diaspora in the capitals of the world. Unfortunately, this was a result that the Sinhala chauvinists did not anticipate. While they kept their own people mired in a blinkered existence of hatred, the minorities in Sri Lanka have been well received in the capitals of the West where they have prospered and grown in influence.

In the light of the terror that has been unleashed on the Tamils by successive governments, a right to self-determination has arisen in them. The modern scope of that right has been discussed authoritatively by the Canadian Supreme Court in Attorney Generals Reference on the Quebec Secession (1998) and by the Badinter Commission set up by the European Union to consider the issues relating to Kosovo and Yugoslavia. Essentially, such a right is held in abeyance where the right to equality is recognized in a plural state held in good balance through its political structure, as it is in Canada, where four successive Prime Ministers were French Canadians. But, whereas in Sri Lanka, there is not only the persistent violation of the right to equality of the Tamils but a course of violence unleashed by government forces on the civilian population, a right of secession arises in them. Such a right can be asserted through violence. It is inapposite to describe such violence as involving terrorism. Right down history from the American War of Independence to the struggle of Mandela against apartheid, violence has been used for the assertion of lawful rights. Though it is obviously preferable that, as in the case of Mahatma Gandhi, peaceful methods should be used in the pursuit of rights, such peaceful methods of protest used by early Tamil leaders in Sri Lanka failed miserably. It is only after the peaceful methods of protest had failed that violent means were adopted by Tamil youth. It is evident that the Tamil diaspora supports their struggle.

The present situation arises because of the hostilities between the two contending forces. The Tamil Tigers are fighting a war of secession in a lawful manner as combatants wearing recognizable uniforms. The civilians have sought refuge in zones designated as safe zones by the Government of Sri Lanka, but are still being massacred by government troops. Those who have escaped the war zone are kept in detention camps in reportedly miserable conditions of captivity for the simple reason that they are Tamils.

In this context, a clear duty of protection arises and this duty, for reasons explained, is the greater in the case of the British Government. It is a duty enhanced by the fact that the relatives of many of its citizens are caught up in the war zone. Though the British government owes a special historical responsibility, this responsibility attaches to the whole international community. The NATO members in particular, having set a precedent in Kosovo, have, at least, the duty to take the lesser route of intervening to protect the Tamil civilians.

Today, we try the henchman of Pol Pot. Fujimori of Peru has just been convicted. Tomorrow, the international criminals in the present Government of Sri Lanka responsible for the atrocities against the Tamils in Sri Lanka will surely be tried for their callous massacre of thousands of Tamil civilians. But, it is today that is relevant. It is today that the hundreds of thousands of Tamil civilian lives under the threat of massacre by the Sri Lankan Government must be saved.