Tamil Eelam - United States Congress 1987

United States
& the struggle for Tamil Eelam

US Congress Committee on Foreign Affairs
Sub-Committee on Asian and Pacific Affairs,
Hearing on Sri Lanka on March 12, 1987

Application of Human Rights and Humanitarian Law
to the situation in Sri Lanka: Statement Of Karen Parker
Attorney-at-Law
and Non-Governmental Representative United Nations
(Human Rights Advocates - Category II)

Introduction

The armed conflict that is occurring in Sri Lanka has serious implications for the Government of the United States. Information attesting to the widespread violations of those humanitarian (armed conflict) law and human rights law heightens the attention that should be paid to the situation in Sri Lanka.

This statement will analyze the conflict in Sri Lanka from the perspective of humanitarian law. In addition it will set out the major violations of those armed conflict law and human rights law occurring in that country. Finally, it will comment on two implications for the United States including the legal situation of Sri Lankans who have fled their country and have sought refuge in the United States.

The Armed Conflict

An armed conflict governed by Article 3 of the Geneva Convention I-IV of 1949 (hereinafter Common Article 3) and all customary humanitarian law norms is now occurring in Sri Lanka. Common Article 3 applies "in the case of armed conflict not of an international character occurring in the territory" of a signatory of the 1949 Geneva Convention. The term "armed conflict" requires that certain conditions be met before armed activities, having sufficiently developed, are to be legally considered a civil war governed by humanitarian law rules. In customary law, rebel or dissident groups must be constituted as combatant forces, under responsible command, and in control of sufficient territory to carry out military operations. In addition the dissident groups must be able to carry out their obligations under humanitarian law, including the obligation to take prisoners of war, to provide humanitarian relief to the injured, to respect the general rules of combat and to have internal mechanisms to remedy breaches.

Protocol Additional II to the Geneva Convention of 1949 while requiring separate ratifications, is nonetheless considered to set out certain statements of customary humanitarian law. In particular Article I of that Protocol is widely considered to set out the test for determining when armed activities reach civil war status. Article I provides in pertinent part:

This Protocol, which develops and supplements Article 3 common to the Geneva Convention of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts ... which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces for other organized groups which, under responsible command, exercise such controls over territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

The situation in Sri Lanka clearly meets this test, a fact that the Government of Sri Lanka confirms by its statement of the facts even though it persists in failing to implement its legal obligations under armed conflict law. While different groups (at times as many as five or six) have engaged in armed activities against the government forces, at the present time the Liberation Tigers of Tamil Eelam (LTTE) are the most active. The LTTE are known to control Jaffna and much of that Peninsula. The LTTE operate radio and television stations, and even carry out some civilian administration. They engage in military operations, under uniform and command.

Sri Lankan authorities have stated to the author that the above facts are true. For instance, in an August 1985 meeting with Mr. de Silva, the Sri Lankan Ambassador to France and Switzerland, he told the author of numerous military operations carried out by the LTTE and other dissident forces and described the situation in Jaffna as being "isolated" from Colombo control and complained of violations of the rules of war perpetrated by the LTTE. At a meeting the author had with Mr. Lalith Athulathmudali, the Sri Lankan Minister of National Security, also in August 1985, the same facts were acknowledged.

The issue of application of the Geneva Convention to the conflict in Sri Lanka is now before the 43rd Session of the United Nations Commission on Human Rights, Geneva, Switzerland, where the author is at the time of this writing. A number of Governments (including Norway, Belgium, United Kingdom, Argentina, Australia) as well as many of the Non-Governmental Organizations (Human Rights Advocates, International Commission of Jurists, International Federation of Human Rights, Amnesty International, Anti Slavery Society, League for the Rights and Liberation of Peoples, Pax Christi International, Pax Romana, World Conference on Religion and Peace, Disabled Peoples' International, Centre Europe Tiers Monde, International Youth and Student Movement of the United Nations) in recognizing the application of the Geneva Conventions, have called all parties to comply.

On March 4, 1987, the United Kingdom made the following statement to the Commission:

We are concerned by the situation in Sri Lanka. we have consistently stressed on those concerned the need for a political rather than a military solution to the ethnic conflict in Sri Lanka. We will continue to do so. only an end to the conflict and a peaceful negotiated settlement which takes into account the needs and wishes of all communities can end the human rights abuses.

On March 5, 1987, the Government of Norway made the following statement:

My delegation would ... urge the parties to the conflict to fully respect the humanitarian standards of Common Article 3 to the Geneva Convention and the Second Optional Protocol of 1977. We would furthermore express our hope that the Government of Sri Lanka will permit the International Committee of the Red Cross to carry out the humanitarian work of assisting the victims of the conflict.

Although all the above listed Non-Governmental Organizations addressed the situation under various agenda items (particularly agenda item 10 on torture, disappearances and detention and agenda item 12 on gross violations of human rights) eleven of them also joined together in an extraordinary solemn appeal in which they stated, inter alia:

The situation (in Sri Lanka) is so grave that it warrants exceptional and urgent consideration by this distinguished Commission. We appeal to the conscience of the distinguished delegates and the governments they represent to ensure that all essential steps are undertaken in terms of international human rights and humanitarian law.

On October 24, 1986, the International Committee of the Red Cross issued an appeal to the international community to assist it in obtaining permission of the Government of Sri Lanka to carry out its mandate under humanitarian rule.

Government actions implying the status of the armed conflict include the prisoner exchange, which took place the third week of December 1986 in Jaffna between the LTTE and the Government. The LTTE had been holding government prisoners of war captured during a battle at Manner in the Northwest of Sri Lanka in September 1986. Two were exchanged for LTTE leaders who had been captured in combat and held in detention for sometime. Additionally, following the battle at Mannar the LTTE turned over the bodies of government dead to the Sri Lankan army.

Violations of Human Rights and Humanitarian Law

Estimates of the number of civilian political prisoners held under the Prevention of Terrorism Act No. 48 of 1979 (the P.T.A.) and the Emergency Regulations have reached 3000 to 4000 persons and include some human rights activists. Accurate figures are difficult because the Government presently denies knowledge of detained persons. The P.T.A. allows up to eighteen months of detention without charge and with no judicial recourse. The Emergency Regulations contain provisions on detention for "unlimited periods as determined by the Secretary" with no judicial recourse. Most of the prisoners are Tamils from the Jaffna, Trinco, and Batticaloa areas and are arrested in sweeps by military personnel. The Canada-Asia Working Group in its Report to the current Session of the U.N. Commission on Human Rights states:

Among the 2700 prisoners at BOOSA, some have been held for more than thirty-four months despite the eighteen month limit set by the P.T.A. Affidavits signed by 273 former inmates at BOOSA allege widespread use of torture, including beating, genital mutilation, and electric shock. While most of the detained have been Tamils, the Government has also used the law to arrest more than 200 Sinhala persons in the South during 1986, primarily Trade Union activists and members of left-oriented political parties (p.28).

Amnesty International has reported 324 cases of disappeared persons since late 1984 while the Batticaloa Citizens' Committee has recognized 359 Tamil youth missing in two districts alone. The U.N. Working Group on forced and involuntary disappearances reports more than 100 new cases. (See U.N. Document E/C.N.4/1987/15.

The U.N. Special Rapporteur on Torture in his Report to the current Session of the Commission on Human Rights described the situation in Sri Lanka as a matter of great concern. (See, U.N. Document E/C.N.4/1987/13.)

Regarding humanitarian law these parties to the conflict have committed serious violations. Attacks on the civilian population including aerial bombardment are well documented. Blockage of humanitarian relief to the Jaffna area has received widespread international condemnation. The Sri Lankan Government persists in mistreatment of prisoners of war, although in an astounding statement made on March 4, 1987, to the current Session of the U.N. Commission on Human Rights, the Government asserted "there are no prisoners of war in Sri Lanka."

A recent scandal in the U.K. reveals the gravity of violations in Sri Lanka. According to the London Daily News of March 4, 1987, the British mercenaries to Sri Lanka had left because of atrocities committed against the Tamil population. The K.M.S. Ltd. mercenaries, allegedly also a part of the network arranged by Lt.Col. Oliver North, walked out ... after complaining that the (Sri Lankan) Special Task Force ... was running out of control and was indiscriminately killing and torturing Tamil civilians.

The Conflict, Human Rights and Refugees

The U.N. General Assembly in its Resolution 41/146 echoes the concerns addressed in Commission Resolution 1986/45 regarding the relationship between gross violations of human rights and mass exoduses. The relationship between armed conflict and mass exoduses is equally obvious. The armed conflict coupled with violations of human rights and humanitarian law has indeed produced a mass exodus of Sri Lankans, mostly Tamils.

Persons who have fled Sri Lanka are entitled to the right of non-refoulement (non-return to country of origin) in humanitarian law, especially because in Sri Lanka serious violations of the Geneva Conventions are occurring. Article 45 of the Fourth Geneva Convention prohibits transfer of civilians to a country that is unwilling or unable to apply humanitarian law. Article 147 of the Fourth Geneva Convention identifies an illegal deportation as a grave breach (war crime). These rules apply in both international and internal armed conflict situations. See, for example, the Report of the U.N. High Commissioner for Refugees to the 40th and 41st General Assemblies, Supplement 12, affirming the application of the principle of non-refoulement (non return) to civil strife. Similar recognition was made in a resolution by the General Assembly of the Organization of American States at its 1985 Session. These documents verify that the principle of non-refoulement, whether arising in refugee law, humanitarian law, or human rights law, is a norm of jus cogens (a peremptory norm).

The Sri Lankan Government has to date refused to apply the Geneva Conventions. This refusal does not impair the rights of civilians who have fled -- they still are entitled to the rights of non-refoulement as long as the civil strife continues. The refusal of the Government to recognize its obligations under humanitarian laws only enhances the rights of refugees. Countries such as the United States that forcibly repatriate Sri Lankan civilians commit grave violations of humanitarian law.

Other Obligations of the U.S. under Humanitarian Law

Article I of the Geneva Convention of 1949 requires the High Contracting Parties to "ensure respect for (them) in all circumstances" even if they are not parties to the conflict. The U.S. could meet its obligations by inter alia calling on Sri Lanka to apply humanitarian law to the conflict and by encouraging the peace initiatives undertaken by India. The United States should call on Sri Lanka to permit the International Committee of the Red Cross to carry out its humanitarian activities.

Note: The author will submit to the Subcommittee the documents of the current Session of the U.N. Commission on Human Rights as well as other relevant materials.