In Life, In Death ˇ Power and Rights
Director, Peace Studies Programme, South Asia Forum for Human Rights, Kathmandu
(Responses to questions on "Human Rights, Humanitarian Assistance and Conflict Transformation
At the WISCOMP workshop on conflict transformation [June 2003])
My purpose here is to present few hypotheses on the theme of the workshop so that we can move towards some kind of thesis on one of the great questions of our time, namely, the arrangement of power and rights ˇ in life, in death. In this exercise WISCOMP has put on me a framework of a set of questions. In order to respond to the questions, I shall at times make WISCOMPÝs statement for the workshop my referral point to argue that the interface of human rights and humanitarianism presents a strategic game between life and death, in a circular way game between power and rights ˇ and what is at stake here is not a choice between human rights and humanitarianism, or an option of combining these two, but nothing less than coping with a paradox of our time, whose solution can come only by settling the great battle in which we all are engaged amidst the conflicts raging around us ˇ the battle around how we shall look at life and death, by which I mean power over life and power over death, right of life and the right of death. This is at the heart of the overwhelming conflicts around us. WISCOMP says that the purpose of this workshop is not to introduce a grand theory on conflict and its transformation, but rather to sift through the diverse approaches, and highlight the complexities in their application (p. 2). I accept it as an acknowledgement of the need to divest ourselves of the received ideologies of rights and humanitarianism in the study of the conflicts, and see for ourselves what the actual practices of life and death in this context have been ˇ if I take it that the rights language essentially means our right to life and humanitarian language means our right to save ourselves from death.
What can be learned from the interaction between human rights monitoring, humanitarian assistance and conflict?
Let us begin with the issue of the interaction between human rights monitoring and humanitarian assistance in conflict. While human rights is politics, and humanitarian assistance is, let us say for lack of better words, civic activities, conflict to put aside the issue of its various forms, which I am not saying is not important, is finally war. War is conquest, or the battle to defeat the conquerors, and war we have been told rightly is politics by other means. In order to understand the complexity already apparent we must bid farewell to the theory of sovereignty, which had taught us that sovereignty resided in the states (roughly in equal measure) or those who controlled the states, that sovereignty meant the right to wage war, the right to inflict death on the ultimate offender, and the duty to protect life. All international laws were based on this recognition, laws of war and peace derived from an acknowledgement of this fact and the recognition of the necessity to regulate this situation of equality prone to causing habitual restlessness. But, in this question, we are visualising a situation where this right has been challenged, the right of life and death has been de-anchored from its habitual source, that is sovereignty, and the power of empire has re-defined sovereignty in a way where human rights monitoring and humanitarian assistance no longer remain a matter of right of life and death, but mere functions of power. In such situation, the paradox is: while war goes on you cannot monitor human rights violations, you can do nothing about the fact that war to begin with is the violation of human rights, you cannot decide the way in which you want to provide humanitarian assistance ˇ in other words, war has re-defined conditions of the right of life and death. The resultant politics is to say the least is the politics of war, by which I mean, politics that continues after the war, continuation of war by other means. Therefore, we have a reversal of situation with the paradigmatic shift I have referred to ˇ the shift from politics of sovereignty to politics of empire. Human rights and humanitarian assistance were the marks of the politics of sovereignty in two different forms, but both signified the right and power of life and death. Now with the emergence of new empire, return of colonial wars, and the extreme right wing form of globalisation waging resource wars, that right of life and death is outdated. These are now tickets of imperial power, by which I mean that these are its simply functional variables. In these altered conditions when right of life and the right to protect life are governed by power of death, human rights can be monitored and humanitarian assistance given to certain extent ˇ but all fundamentally governed by the imperial politics, which is war by other means.
I shall give an example to make the point clear. The Iraq war was a decade long war, in which many actors had played the role of aggressor or silent spectator, and was not what is usually written about in the newspapers as a less-than-a month war. These actors included the global media giants, which bayed for blood of the Iraqi people, and even the UN Security Council, which imposed strict economic blockade on the country and disarmed the country completely thereby rendering Iraq defenceless in face of the impending aggression. The January-February 1991 war followed the UN Security Council Resolution 687, which authorized "all necessary means" to obtain unconditional withdrawal of the Iraqi troops from the Kuwaiti soil. The story of the 1991 Gulf War is well known and does not require a repetition here. But we can recall the indiscriminate carnage towards the end of the war when the Iraqi forces were already withdrawing from Kuwait following MoscowÝs 24 February 1991 peace plan, which Iraq had accepted. On 26 February 1991, as the long Iraqi convoy was moving towards Basra along the Highway 80, the coalition forces launched a combined ground and air offensive and hit both the ends with heavy explosives. The slaughter continued for the next forty hours with petrol tankers and tanks exploding in cascades of red flame and figures of soldiers perishing in them like little ants. An estimated 25,000 to 30,000 Iraqis of 12 retreating divisions died. The air campaign alone had taken the toll of 32,000 deaths and the total Iraqi casualties added up to 62,000. The coalition forces reportedly dropped a total of 99,000 to 140,000 tons of explosives ˇ equivalent to five to seven of the nuclear bombs dropped on Hiroshima. We do not know what the calculation would show this time. The war in 1991 had also witnessed a near total destruction of IraqÝs civilian infrastructure, including electric power stations, irrigation facilities, and water and sewage treatment plants. It was estimated that Iraq needed US $ 22 billion to repair damage to the civilian infrastructure. Then came the burden of war reparation to be paid out of oil for food programme ˇa UN humanitarian programme to save life in conditions of slow, gradual, and sure death. And all these went on for the next ten years, while shadowy men like Wolfowitz and a dozen or so lobbyists during that period kept on pressing the case for war on Iraq. Where would human rights monitoring begin in this case? Will it monitor the inhuman nature of humanitarian assistance that is conditioned by the appearance of the "New Empire"? Will it probe the margins, the vanishing margin between war (the right of death) and the deployment of humanitarian strategy (the right of life), making it all a matter of power of life and death?
What are the ways in which human rights and humanitarian assistance groups can coordinate their work to enhance the effectiveness of their intervention?
The divide between human rights and humanitarianism, the impossibility of coordination of the two, the reality of their co-existence, and the simulated acts of life and death in this relationship ˇ is the reality we are talking of here. We must be careful if we want to pose in this way the issue of the relationship. Human rights speak of the rights of the people, humanitarianism speaks of population ˇ the target to be fed, clothed, sheltered, maintained, and protected. I can immediately see two anomalies here: first, war is a suspension of rights. INTER ARMA SILENT LEDGES ˇ in the time of war laws are silent. You can say that you may have a right against war, but that means that you have uncoupled the two connected realities ˇ rights and power in life and death. You may also say that this is a war to establish rights, yet I doubt if you can speak of rights in the time of war. Rights come after the war. That is how people figure in this scenario. On the other hand, you can protect population from the destruction of war as much possible, that is what humanitarian activities are ˇ acts of mercy, hospitality, and care. These are ethical acts ˇ the techniques of self in relating to other selves. It is essentially private, that is truly public or non-state. Organisations of care and charity have always worked in human societies, at times encouraged by royalty, emperors, kings, princes, churches, mosques and temples ˇ but as technologies they had been non-state. Today, in the condition of modernity, these organisations are like states or huge corporations, in their techniques they bring out the exact relation between care and power. In this metamorphosis we can see two things ˇ one, from humanitarian acts to humanitarianism, which is an ideology (from sentiment to doctrine); and second, care as an arm of power. You can say like Dostoyevsky, we love humanity, but we hate human beingsÍ
The question that therefore I would like you to think is: how can we perched as we are on these two planks of human rights and humanitarian acts turn these to acts of justice, that will not be bound by the closure caused by the self-foundation of law? In other words, if the laws of war are a fallacy (beyond a point), if neither the right of life nor the right to save life can get out of the closure or the aporia, what are the conditions only which can make such intervention possible, can make life the sign of justice, which though linked to power and rights is their dangerous supplement? Can we think of conditions of politics that can anchor the issue of conditions of life to justice?
How should such groups and other intermediaries address the "unintended consequences of their interventions"?
We have to work rigorously to see what the consequences in the past have been. There is no other way to approach the question. Foucault once pointed out that the one of the greatest social security programmes of the modern era was being planned at a time when one of the most terrifying mass murders was being enacted, "The French Revolution gives the signal for the great national wars of our days, involving national armies and meeting their conclusion or their climax in huge mass slaughters. I think that you can see a similar phenomenon during the Second World War. In all history it would be hard to find such butchery as in World War II, and it is precisely this period, this moment, when the great welfare, public health, and medical assistance programs were instigated. The Beveridge program has been, if not conceived, at least published at this very moment. One could symbolize such coincidence by a slogan: Go get slaughtered and we promise you a long and pleasant life. Life insurance is connected with a death command" (The Political Technology of Individuals).
If we know what the intended consequences were or are, we can then think of the other consequences. A rigorous study of the history or the histories of care is needed. Take the history of the birth of the Ramakrishna Mission founded by Vivekananda, the life of Florence Nightingale, the activities of Norman Bethune, the Kotnis Medical Mission to China, the work by the PeopleÝs Relief Committee in Bengal Famine, the history of Edhi Foundation in Karachi ˇ you will see three aspects: its character as protest, its links to politics, finally its subsequent development marked by the game of care and power. By consequences I mean here the history. It is important to see the diverse and the complex aspects in it ˇ the protest against death, and the normalisation of death, the disciplinary power of the language of care.
In the wake of concerns relating to human rights violations, is neutrality possible? What are the ethical questions that emerge from the focus on impartiality in conflict? Does neutrality suggest that aid workers and other intermediaries run the risk of becoming instruments of social control rather than social transformation?
My reflections on part of the question are there already in what I have said. But the question can lead to few other reflections as well. The question of neutrality is being posed at a time when many regimes, mostly the imperial regime, have been able to wage wars killing countless people as "manager of life and survival". Now with this logic firmly established, the idea is to kill as less as possible to assure as many as possible that their lives would be spared. Consider therefore the growth of technology of killing ˇ targeted killing. This does not necessarily mean that there are fewer deaths, but it ensures that a war as the Iraq war we witnessed will be now two wars at the same time ˇ virtual war and real war. In the real war, slaughtering men and women would continue; in the virtual war there will be targeted killing, less killing, no body count, a simulated situation where neutrality will become more and more possible. No longer neutrality such as Anglo-French neutrality in Spanish Civil War would cause outrage; states would now defy the massive public outrage that we saw throughout the globe and support punishment of a recalcitrant state even to the point of the destruction of the country. But you can see also a different development ˇ as control over life grew more, the necessity to kill became less as a form of juridical punishment; similarly as more countries acquiesce to the most extreme right wing form of globalisation, the necessity to punish will be less. Controlling the bodies, physically regulating the lives of millions ˇ that was always the imperial dream, emperors therefore issued edicts to guide lives, this dream is now more than ever closer to the point of realisation. With satellites, precision bombing, television, micro-inch mapping, genetically modified food, drug-food-clothing-chains, monitoring of small economies, and many more ˇ the imperial dream of controlling millions and millions of people, turning them into population groups to be administered is becoming an exciting reality for the empire. You may remain neutral or non-neutral ˇ the agenda of neutrality is becoming irrelevant, because in front of our eyes ethics and law are adjusting themselves to the new type of war being evolved by the empire. Thus, assassination of leaders (decapitation), incarceration (Guantanamo Bay prison), manipulation of media and the info-war (CNN or Fox News style mafia operation), withholding food supply from reaching the garrisoned town/country thus killing children, weak, and the infirm (economic blockade), asphyxiation and mass terrorisation (cluster bombs and daisy bombing) ˇ all that the laws of war prohibit have got moral and legal sanction. The question is no more therefore of rights and care, but resistance politics in defence of life at every level unconnected to the power of death. Humanitarian aid agenda must be asked ˇ aid under what conditions, reaching whom, given by whom, and reaching when? In this situation, when the right to life is linked to the power of death, whose humanitarianism is it anyway? When efforts to give life-masks to groups of human beings on the verge of death meet the reality of power, that is the moment of truth: the ultimate compromise of rights with power, of life with death.
Take again the noblest principles of impartiality in very recent time. The Amnesty International made 10 demands on the combatants on 18 March 2003 as the attack on Iraq was to begin. These demands were: Do not attack civilians; Do not use weapons that kill and maim indiscriminately; Treat civilian detainees fairly and humanely; Treat combatants according to the Geneva Conventions; Prioritise the safety and needs of the Iraqi people; Refugees and the internally displaced must be protected and helped; Perpetrators of crimes under international law must be brought to justice; All parties should allow independent investigation of their conduct; Human rights monitors should be deployed throughout Iraq as soon as practicable; All parties must support the UNÝs humanitarian and human rights work. As I have said these are the noblest principles of neutrality. But they are also reflections of the tensions between the humanitarian law called the laws of war, and the human rights law they mirror. The first 6 demands derive from the international humanitarian law, with distinction and proportionality being the guiding principles, which aim to "restrain the destructive force of war, while recognizing its inexorable necessities". Obviously, it will be difficult to give findings on whether or not and to what extent these principles of distinction and proportionality were adhered to until the parties involved in the war (as AmnestyÝs demands 8 and 9 show), submit to independent investigation of their conduct and receive human rights monitors in the terrain of their operations. But in conditions of victorÝs justice, how would the primary evidence of violations of the principles of proportionality, distinction, and accountability be judged? The implication is that as against the traditional way of securing reparation by the victorious power from the vanquished (which is what food for oil programme was), we need a process of reparation, which will take into account the costs of damages including the ongoing devastation and their impact on the quality of life because of the way the war has been conducted by the victorious party.
In such circumstances, the issue of reparation is linked to human lives, indeed the basic right to live. But I am not aware, judging the trajectory of the career of international human rights law and international humanitarian law and the contrasting history of colonial wars, plunder, murders, and loot, that such law can ever agree on a computation of the overall damage and the need for securing reparation from the victorious party.
Or, let us take the case of suicide bombings. The issue of distinction between combatants and non-combatants assumes obscure dimensions in the context of resistance against total aggression, as it has been always so, when combatants and civilians, all mobilise in the war against an invasion. How will human rights law and humanitarian law react to "resistance", even if it manifests itself in such desperate and suicidal acts, as the British people would have taken recourse to if the Nazi German troops had crossed the English Channel in 1944? Shall we recall the American Revolution as perfidious because its harbingers had encouraged the participants to sneak up to the British military formations and shoot at them surreptitiously? It is time we rethink the laws to bring them to conformity with the current reality of colonial and neo-colonial wars of aggression and conquest.
How do we work for peace, also raise concerns relating to human rights? How do we achieve peace with justice?
Let us maintain our critical approach in reflecting on the question. Of course, we are for peace, because we think it serves our desire for justice. But for this, once again we must remember that peace is war by other means. Therefore, peace is also contentious politics; behind the innocent tale of peace, we have the suppressed stories of contention and war. This is true of all varieties of peace, such as "social peace" that the industrialists and neo-liberals want at times, "peace after state-formation" that the leaders of both India and Pakistan wanted in their respective countries in late forties after the British handed them power to rule, "peace after an accord" when the state wants to disarm the rebels, and of course "peace when the night has settled on the killing field", that is conquerorÝs peace, for instance the return of peace in Iraq. What will be transformed in course of the conflict depends therefore on this life-death game. We can ask: will conflict be transformed into something else? Or, will conflict transform others, everything around it (p. 3)? As we say, what is cooked in the kitchen is not decided in the kitchen but outside, similarly what happens to the destiny of peace will not be decided in the arena of peace, but elsewhere ˇ that is where we need a new argument of justice. I am trying to show in an ongoing work how in our country the Constituent Assembly and the Interim Government in late forties of the last century had the common aim of pacifying the exciting dreams of the colonised people, how the justice-bearing provisions of the basic proclamations and the text gave away to the law and order bearing provisions, which admittedly included certain rights guaranteed by law and order.
Take the issue of disarmament that is, disarming the defeated. As you know, disarmament means arms-control. The practice of negotiating arms control among sovereign nations in international forum in peace-time with a view to making the agreed measures applicable to all nations began one century ago with the Hague Conferences in 1899 and 1907, both held at the initiative of Russia then lagging behind in European arms race. 188 delegates from 26 countries participated in the first conference; 256 delegates from 44 countries participated in the second. Disarmament goals were not achieved. Proposals for limiting the calibre of naval guns, the thickness of armour-plate and the velocity of projectiles were rejected. There was no agreement on limiting the number of the members of the armed forces and limiting war budgets, though certain types of weapons were prohibited or restricted in use, such as asphyxiating gases, expanding bullets, or submarine contact mines. The territory of a neutral country was declared non-violable and the Permanent Court of Arbitration, the predecessor of International Court of Justice, was established. I do not know how the NGO-sponsored Hague meet of 1999 wrestled with the one-century old ghost when it adopted "An Agenda for Peace and Justice" dealing with the root causes of war, international humanitarian and human rights laws and institutions, prevention, resolution, and transformation of violent conflicts, and disarmament and human security. But what we do know is that in less than ten years of the Second Hague meet, the massacres of World War I started; the massacres then gave way to the Treaty of Versailles that disarmed Germany, dissolved its general staff, allowed only a token navy, ordered demilitarisation of the Rhine zone on the east, and yet in twenty years again mass murders commenced. The annual publication of Armament Year Book by the League from 1924, the permanent advisory commission of the League, the attempts to regulate arms trade and production that began with The Brussels Act of 1890 (controlling the production and supply firearms and ammunition to parts of Africa), the 1924 Geneva Protocol and the 1925 Geneva Convention on the arms trade, and finally the Kellog-Briand Pact of 1928 that directly led to 1932 Disarmament Conference, ended with renewed clash of arms marked by new weaponry. While our humanitarian instincts lead us to respond to the calibrated calls on weapons of mass destruction, outlawing of landmine, etc. we must remember also this "curious history".
"The ICRC considers a total ban on the production, export, and use of anti-personnel mines to be the only effective solution to the humanitarian catastrophe they have caused" (ICRC, 1995). Yet, such a solution cannot come in the absence of measures for eradicating the disparity of arms, eradicating manufacture of weapons of mass destruction by the empire, and without an end to the present polarity we see in warfare ˇ the massively organised warfare of the empire and the re-colonisers, and the fragmented wars everywhere. Here I want to re-emphasise what I alluded to in the beginning, the noble humanitarian aims cannot be reached by claiming that international humanitarian law has developed quite separately from human rights law. In the light of our experiences, possibly, it is time to think whether it is realistic to claim that, by not basing on human rights, but in stead on the need to act in a crisis situation "because a neutral and independent intermediary is able to find practical solutions for humanitarian problems" (ICRC n.d.), humanitarian law can protect human rights (for instance, through visits to prisons and detention camps thus preventing disappearances, or through providing essential supplies, thereby promoting the right to life). Living and letting others live is not such an innocent act. All social and political contracts are results of war; the humanitarian law is no exception in so far as it has nature of a contract. The duration of their imposition is defined as the time of peace, which ends with new wars, requiring new contracts. We have to keep in mind the permanence of wars in order to forge new practices of human rights, justice and peace. An ideal of justice has to link the two, and not de-link.
I shall end these reflections with another brief instance ˇ the rules governing conduct of hostilities in internal armed conflicts ˇ such as distinction between combatants and civilians, immunity of civilian population, prohibition of superfluous injury, prohibition of perfidy, respect for and protection of medical and religious personnel, and of medical units and transport, prohibition of attacks on dwellings and other installations used only by civilian population, or precautionary measures in attack, plus the customary rules on chemical and biological weapons, poison, mines, incendiary weapons. Yet we know the controversy around Common Article 3: What defines "armed conflict"? It is not international ˇ is that enough? Or is ambiguity an advantage, which a humanitarian agency like the ICRC may think, because ambiguity allows efforts to push the threshold of application? Legal commentators like Lindsay Moir (The Law of Internal Armed Conflict) have noted the issue. We have of course determinants of what constitutes an "armed conflict", but you will note here the politics of recognition. Recognition, that is legal recognition, of "the Party in revolt" or "the insurgents" depends on possessions of "an organised military force, an authority responsible for its acts, acting within a determinate territory", also on the de jure government recognising "the insurgents as belligerents", "the insurgents (having) an organisation purporting to have the characteristics of a State", etc. In all these, as I had noted earlier on an essay on peace accords in India, we have state logic reproducing itself at every level, a denial to admit that the phenomenon of revolt is a paradox ˇ it is a reproduction of the old form against which it rises and it carries new elements not associated with the old state. The determinants mentioned just now try to understand insurgency in the language of law of the state, therefore make them subordinate to state logic, and refuse to admit that the party in revolt represents a "dangerous supplement". The law of internal armed conflict therefore fails. The politics of war can be tamed not by the law of war but by politics of dialogue, one of whose expressions can be legal pluralism.
To sum up all these: To carry the work of justice in the shadows of war we need to take war in all seriousness. I am not speaking of a cyclical theory of war and peace. My plea is for a critical politics of justice that will make us aware of the script of the modern war that lays down in details various roles, including the ones that human rights and humanitarianism will play in the event. My friend, Francois Bernard, the architect of an astonishing website on globalisation, drew my attention to the fact that, modern imperial wars are like political blockbusters: the last war we witnessed gripped to our seats was not "like a film", but was precisely: a film, down to the last detail. Drawing inspiration from a cinematographic industry, the script of war already realises, in advance, all its plans and ventures. That is why the script in modern imperial war is so sacred, so inviolable dictating everyone associated with the war including human rights and humanitarian groups the role/s to play. The casting, technical and financial means of the cinematic war is meticulously planned, to ensure an exceptional success, long before the war is launched. As he wrote to me, war literally cannot be waged without cinema, without the cinema effectively becoming the paradigm of the on-going war, which most imagine as "real", while it is only the mirror of its cinematographic being. Thus, there is an all round attempt to gain a complete control over all channels; then even the most trivial scripting, casting and directing errors can be erased by the magical marketing wand. The only important requirement in this case is that there has to be a film in the reel, sound bytes and abundant images, so that expert mixers can continuously distil it out to consumers with their critical faculties ever-weakening.
How does one disturb such script? By refusing to play the given roles; by shifting our lenses a little; by becoming uncomfortable at times with the chairs we are given; by asking time and again - Where Do Rights Come From? From law or from contentious politics ˇ that sense of justice, that extra, that remainder, which could not be consumed by the regime of law?
[Note: The various references to Iraq here are all drawn from an open letter from eleven South Asian peace and human rights activists to Irene Khan, Secretary General, Amnesty International, titled, "Let Us take Steps to set up an Independent International War Crimes Tribunal on Iraq", 17 April 2003. On details of the destruction, please see the two letters issued by the group. For instance, the letter also cites the Sydney Morning Herald and Melbourne Age, which claimed that the coalition forces dropped 40,000 pounds of explosives and napalm bombs over Safwan Hill near Basra to beat the Iraqi resistance. The US authorities have denied. They have also been used bunker buster bombs, 5,000-pound explosives, which are designed to penetrate up to 6 meters of concrete or 30 meters of earth before exploding. These bombs have been used also in the urban area of Baghdad. Former Nobel Peace Prize nominee Helen Caldicott said that the casing of bunker busters were made of uranium 238, depleted uranium, or DU. The coalition forces remain unapologetic about the extensive use of DU tipped anti-tank shells, which burn through tank armour, igniting the vehicle. After exploding, 70 per cent of the shell is said to vaporize into tiny particles and to get carried by the wind. www.safhr.org]