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Is all resort to
Having said that, President Rajapakse's address in Havana affords an opportunity to examine the rhetoric of those who would suppress struggles for freedom with the cry of 'terrorism' - and an opportunity to call for the liberation of political language along with the liberation of peoples. What is terrorism? Is all resort to violence to secure political ends, terrorism? Aurobindo wrote a hundred years ago -
And, Subramaniam Sivanayagam, in his own inimitable way, related a homely story in his "Dear Sri Lanka Ambassador... Your Slip is Showing" in November 1983. He wrote -
A hundred years after Aurobindo, and 23 years after Sivanayagam's writing, the question remains: What are the circumstances in which a people ruled by an alien people may lawfully resort to arms to resist that alien rule and secure freedom? Or is it that there are no circumstances in which a people ruled by an alien people may lawfully resort to arms to to liberate themselves?
Let us take the conflict in the island of Sri Lanka.
Are the Tamil people right to point out that peaceful attempts to resolve the conflict were met with government sponsored pogroms in 1958, 1961, 1974 and 1977 ?Was Paul Sieghart Q.C. right to conclude in his Report of a Mission to Sri Lanka on behalf of the International Commission of Jurists in March1984 that "communal riots in which Tamils are killed, maimed, robbed and rendered homeless are no longer isolated episodes; they are beginning to become a pernicious habit."
Are the Tamil people right to point out to the record of broken pacts, dishonoured agreements and evasive proposals and Sinhala chauvinism's consistent refusal to recognise the existence of the Tamil people as a "people" with an historic homeland? Was Professor Marshall Singer right to conclude in 1995 that -
Are the Tamil people right to point out that ethnic outbidding has perpetuated rule by a permanent alien Sinhala majority for the past several decades? Was Professor Neil Devotta right to conclude in 2005 that -
Are the Tamil people right to point out the truth of that which Gandhian leader S.J.V.Chelvanayagam declared in 1975 -
Are the Tamil people right to point out that the Sixth Amendment to the Sri Lanka constitution outlawed the parliamentary political struggle for a separate state and that there was no alternative but to have recourse to an armed struggle for freedom? Are they right to point out that the 6th Amendment itself was a clear violation by Sri Lanka of its international obligations?
Are the Tamil people right to point out that their armed struggle was a last resort against oppressive rule by a permanent Sinhala majority within the confines of an unitary state and that it is therefore not unlawful? And the double negative is deliberate. Are the Tamil people right to point out that Sri Lanka's resort to arms to quell a struggle for self determination is unlawful?
Do we not deliberately obfuscate when we conflate the two words 'terrorism' and 'violence'? The Cuban revolution was violent but it was not terrorism. The war against Hitler was violent but it was not terrorism. Again, the war against Saddam Hussein was violent but presumably, it was not 'terrorism'. And so too the continuing war against the Taliban in Afghanistan is violent but presumably, it is not terrorism.
What is terrorism?
And if all resort to violence to secure political ends is not terrorism then, by all means let us address the question: what is terrorism?
'Terrorism' is a term used in legal instruments as well and legal instruments have legal consequences - consequences which impact on the fundamental rights of self determination, freedom of expression and freedom of association.
The view expressed by Agner Fog in April 2002 that "...since there are more than a hundred different definitions of terrorism... we have to admit that the concept of terrorism is a rhetoric device used for condemning one's enemies rather than a scientifically definable category.." may well be true but that does not help us in defining the term 'terrorism' as used in legal enactments.
Again the conclusion in the Oxford Concise Dictionary of Politics (2nd edition) that terrorism is a
may well be right. But that too will not help us in defining the term 'terrorism' as used in legal enactments. And define we must. The rule of law demands that terrorism be defined - otherwise we will enter the arena of arbitrary decision making, reminiscent of the times when equity was measured by the length of the Lord Chancellor's foot. And that would be to adopt an Alice in Wonderland approach to the law and follow in the footsteps of Humpty Dumpty -
Any reasoned approach to a definition of terrorism will need to make some matters clear. One is that terrorism is concerned with means and not with ends. Mira Banchik was right to point out in International Criminal Court & Terrorism -
It is right that we should separate means and ends. But it is also right that we should examine the international law implications where a freedom fighter is a combatant in an armed conflict recognised by international law - a combatant in control of territory within internationally recognised lines of control. We need to pay attention yet again to the words of Michael Schubert 'On Liberation Movements And The Rights Of Peoples',1992
Domestic law cannot define terrorism by ignoring international law concerning the rights of people in war - and the right a people have, as a last resort, to take up arms to free themselves from oppressive alien rule. But that is not to say that both combatants in an armed conflict are not bound by the laws of armed conflict. They are bound.
And it is this which is crucial in the case of an armed struggle for freedom. International law recognises the rights (and duties) of combatants in an armed conflict. Article 1.1 of Protocol II of the Geneva Conventions defines an armed conflict as one
The LTTE is an organised armed group, under responsible command, exercising such control over a part of the island of Sri Lanka so as to enable it to 'carry out sustained and concerted military operations'. On these facts, reason shows that the conflict between Sri Lanka and the LTTE is an armed conflict within the meaning of the Geneva Conventions and international law.
The Inter-American Commission on Human Rights was right to point out in 2002 -
And it was right to add
And here the view of terrorism expert A.Schmid in a 1992 report for the then UN Crime Branch makes good sense.
In the end all good law is founded in sound common sense. Acts of terrorism are the peacetime equivalents of a war crime. A state which seeks to secure its stated aim of 'democracy' (in a peace time situation) by killing civilians and prisoners, as Pinochet attempted in Chile, commits acts of terrorism. Again the actions of Al Queda in targeting civilians would amount to acts of terrorism where the actions were in a non armed conflict situation. But, the same acts committed during an armed conflict would amount to violations of the humanitarian laws of armed conflict.
Deliberate attacks on civilians, hostage taking and the killing of prisoners in a 'peace time' situation are terrorist acts. But in an armed conflict situation these same acts are war crimes and breaches of the Geneva Conventions - and may be punishable as such. But to categorise a combatant in an armed conflict as a 'terrorist' organisation and seek to punish it on that basis, is to violate both international law and common sense. It is to assert that a people ruled by an alien people may not, as a last resort, lawfully resort to arms to resist that alien rule and secure freedom.
LTTE as a terrorist organisation - a political act
directed to prevent the emergence of an independent Tamil
For Sri Lanka, branding the LTTE as a 'terrorist' organisation was simply another weapon in its armoury to subdue Tamil resistance. In 1978 Sri Lanka proscribed the LTTE by recourse to Emergency Regulations under the Public Security Act. The proscription was renewed from time to time. The political nature of the proscription was underlined when in 2002 Sri Lanka rescinded the proscription as a prelude to the Norwegian sponsored peace talks.
The United States listed the LTTE as a terrorist organisation in 1997 four years before 9/11. The United Kingdom listed the LTTE as a terrorist organisation in February 2001 seven months before 9/11. These listings had nothing to do with 9/11. The European Union and Canada followed in April 2006. But even though these latter listings were after 9/11, the reasons were not very different to those which impelled the US in 1997 and the UK in early 2001.The political nature of the listings is shown by the somewhat ludicrous result that today, the LTTE is not proscribed in the country in which the LTTE is alleged to constitute a 'terrorist' threat (i.e. Sri Lanka) - and that the LTTE is proscribed in countries in which no one alleges that it poses a 'terrorist' threat.
The international community is not unaware that in an armed conflict situation, violations of the humanitarian law of armed conflict need to be addressed by recourse to other fora. And, in any case, the international community is well aware that the violations by the LTTE paled into insignificance compared to the terror practised by the Sri Lankan state, the enactment of laws which were an 'ugly blot on the statute book of any civilised country' , Sri Lanka's resort to arbitrary arrest and detention, torture, extra judicial killings and massacres, indiscriminate aerial bombardment and artillery shelling, wanton rape, genocide - together with press censorship, disinformation and murder of journalists, and the impunity granted to Sinhala armed forces, para military groups, goondas and Sinhala thugs.
The political reality is that the proscriptions had little to do with with allegations that the LTTE had violated the humanitarian laws of armed conflict - and everything to do with preventing the emergence of an independent Tamil Eelam state and in this way advance the strategic interests of the international community - and maintain the uneasy power balance between the US and India in the Indian ocean region.
"..As I have said in both India and Pakistan, the U.S. does not envision or support the establishment of another independent state on this island, nor do we believe other members of the international community would support it..." US Under Secretary of State, Thomas R. Pickering, on-the-record Press Conference, 29 May 2000
Listing precludes Courts
from themselves finding on the facts whether LTTE is a
The political nature of the listing of the LTTE by the international community is also shown by the fact that in each case, the listing was made by the executive wing of the government concerned under laws which precluded the courts from themselves finding, on the facts, whether the LTTE was a terrorist organisation or not.
Though judicial review is not excluded, such review of the action taken by the executive wing is limited to determining whether the executive had acted arbitrarily or wholly unreasonably. And, the courts in the U.S.A., in Canada (and, for that matter, in the United Kingdom) have always shown a great reluctance to interfere with executive discretion in the area of 'claimed' national security.
Courts take the view that where 'national security' is threatened, executive discretion relating to the very life of the nation is involved and this is not a matter where the judiciary should supplant the view of the executive. It is said that the domestic Constitution has empowered the executive (and not the judiciary) to decide matters relating to national security. It is urged that the information on which the executive acted, cannot be made available to a court, to be tested by cross examination and a decision made according to law - because to do so would be to put at risk the national security apparatus of the state, which must function in secrecy.
It is procedural law that creates the frame within which justice may be done. Procedural law is civilisation's substitute for private vengeance and self-help. But in the case of the categorisation of the LTTE as a terrorist organisation, procedural law prevents the Courts from examining all the facts, testing the truth of the evidence, applying the law to the facts so determined and then ruling whether the categorisation as a terrorist organisation is lawful. Lynch law is no substitute for the rule of law.
In Havana, President Mahinda Rajapakse was right to distinguish 'liberation' from 'terrorism'. But President Mahinda Rajapakse may want to pay more careful attention to the views expressed by Dr. Johan Galtung, founder of the International Peace Research Institute, Oslo, Dr. Hans R. Klecatsky, Professor of Public Law, former Minister of Justice of Austria, Dr. Auguste-Raynald Werner, Professor em. of International Law and Permanent Representative of the I.P.O. to the United Nations in Geneva and many others in the Geneva Declaration on the Question of Terrorism in 1987 -