“Now, all the duties of rulers are contained in this one sentence, the safety of the people is the supreme law.”- Thomas Hobbes (‘Man and Citizen’)
Who should be “accountable” and primarily to whom, on what issues and why? Are the Sri Lankan state, its military and its leaders primarily accountable under international law? Are they primarily accountable to the UN or a resolution passed by one of its bodies, which is not even the Security Council? Arguably this might have been the case had the Sri Lankan military invaded another country and occupied it even in part. That is a violation of international law and the founding Charter of the UN, the primary purpose of which is to regulate the conduct of the global inter-state system. However, the Sri Lankan State fought a war within its own legitimate borders, in order to restore and protect them. Under international law, Sri Lanka does not occupy any territory or peoples.
Thus whatever the degree of the Sri Lankan state and military’s accountability under international law, it is entirely secondary.The State and its military are primarily accountable to its own country and its citizenry. Simply put, the State and its military are accountable primarily to the Constitution of the country concerned —and NOT to international law or international institutions.
The very foundation of the Social Contract is the protection by the State of the citizenry, from the armed aggressor. The military’s primary function is to defend the country and its citizens from armed attacks;to guard us from existential threats.However, to the extent possible, human rights should be protected in the commission of its primary duty of defending the country against armed enemies.
There is a more fundamental point. International law must perforce be regarded as of “second order”while national law is of “first order”, because national law results from a process of deliberation by the representatives of the people, within a political community and system, while international law does not. There are no international elections, international parliaments, international governments, international Constitutions or international states (though the United States might like to regard itself as the equivalent). There is no international political authority which decides. No country allows itself to be governed primarily by international law. Domestic order cannot be governed primarily by laws which are sourced and anchored outside the territorial boundaries of the political community. International law lacks the degree, the “thickness” of legitimacy, which national law does, anchored as the latter is in popular sovereignty and an organic political process.International law is primarily a regulatory framework for interstate relations; for relations within the interstate system, i.e. the world order, not the domestic/national order. International law may impinge upon but can never be the dominant factor or determining framework with regard to the coreexistential concerns of the State and the exercise of state power:survival,self-defence, security and the making of War and Peace. While this is true of all states, it is truest of a sovereign Republic. There is the well-known distinction between “soft law” and “hard law”. TheUNP Government and the TNA imply that international law is “hard law” while national law, including the Basic Law, is “soft law”!
In agreeing to the UN resolution, the government has undertaken to amendthe country’s laws so as to make it possible to try suspects for the full range of offences under national and international law. This means that those who fought a war to defend the country would be tried under laws that did not exist on the country’s statute books when they fought that war. They will be tried for conduct that may have transgressed higher international norms—a matter for regret and to be avoided -- but was not illegal in this country when it was allegedly perpetrated.
From the Nuremburg and Tokyo Tribunalsto Cambodia, special courts, special laws and special prosecutors are an exceptional machinery used to try defeated aggressors; the defeated (antidemocratic, totalitarian) Enemy. Our Government is overriding or standing on its head, the constitutive basis of politics itself: the distinction between Friend and Enemy (Schmitt). Sri Lanka, a nation that triumphed over terrorism and preserved its sovereignty, and the Sri Lankan military, that defeated one of the toughest irregular fighting forces on the planet, are now submitting to the “Special Court/Special Prosecutor/foreign judges” formula that a defeated, invaded, occupied nation and a beaten army receive at the hands of conquerors. We won a war, but we are being treated, are letting ourselves be treated, and some are actually welcoming our treatment, as if we lost the war.
Today, the Tigers in France and Germany and those who march with Tiger flags in London and Toronto must feel vindicated--as if the separatists won and we lost. Prabhakaran’s gamble of the “human shield” and large-scale hostage-taking, paid off posthumously. That’s the encouraging lesson of the Zeid’s Report and the US-UK-SL Resolution, to terrorists the world over. In Latin America accountability processes were held only decades after the events, against members of military juntas which had overthrown civilian democratic rule, not militaries which had protected the democratic republic and the Constitution. Those Latin American democracies which initiate the (decades delayed) accountability actions are usually the former civilian victims of military regimes, not those who owe their lives to the military’s efforts, as in Sri Lanka.
The Sri Lankan military victory opened the way for elections in the North and East after 25 years. In Sri Lanka for the first time in world history, special accountability mechanisms, outside the normal courts and normal law, with an active foreign component, will be used against democratically elected leaders and a constitutionally legitimate, victorious military which won a war of national defense.
International law, the UN, the Westand “civil society”did not save our country, our lives, those of our families and unborn generations,from the decades-long dark reign of the Tiger hordes. The guns and blood of the Sri Lankan military and the steel will and determination of our nation’s leader did. So do we betray and sacrifice the latter on the altar of the former?
What are our values? Who do we serve and who should we? Do we bow before the alien gods of the “international community” or do we to protect our sons and fathers who fought to protect us from the evil armies of terrorism? What is our primary identity and loyalty? Where does our primary duty and responsibility reside? If it is to the international rather than the national community, who will remember us and how will we be remembered, and judged, once we are dead?How will we figure in the narrative of the nation? If we serve international interests to the detriment of the national, if we sever our roots in the national community, will we not bring dishonor to our patrimony and devalue the legacy we leave?
The ideology of the governing elite is anti-state; hostile to the national political character of the state and its vocation as protector and concentrated expression of the national political community. The assumption is that it is the nation-state and its military that are the main threat to human rights. Butis it not the state and its military that guaranteed that an environment in which that most basic of human rights—the right to life – could be observed, by putting an end to terrorism and the war itself, and by restoring peace?
The Government is turning against the State. It regards two pillars of the State, namely the military and the judiciary, as problems, obstacles, even targets.The political scientist in me can’t wait to see how that playsout. There’s a book in it for me.