The European Union & the Listing of LTTE

Sathyam Commentary
28 December 2008

The European Union & the Listing of LTTE
as a Terrorist Organisation - Some Reflections

[see also U.S. State Department Undertakes Review of Designation of LTTE as a Terrorist Organisation together with Comment by tamilnation.org ]

"Will you walk into my parlour?" said the Spider to the Fly,
'Tis the prettiest little parlour that ever you did spy..."
One would imagine that after several decades of painful experience,
the fly may have also worked out ways of negotiating spider webs...

The question of initiating legal proceedings to challenge the listing of the LTTE as a terrorist organisation by the United Kingdom and the European Union has been raised with me from time to time by concerned Tamils during the past several months. As 2008 draws to a close, I felt that it may be helpful to place on record some of my responses.

At the outset there may be a need to recognise that the listing of the LTTE as a terrorist organisation by the European Union was a political decision. The designation had little to do with the means adopted by the LTTE and everything to do with its end goal of an independent Tamil Eelam. Given the uneasy balance of power in the Indian Ocean region and the emerging influence of China and Iran, it is this end goal of an independent Tamil Eelam which the US, UK and the European Union find inimical to their strategic interests.

"...the denial by international actors of their conflicting strategic interests in Sri Lanka draws a veil over the real issues that any meaningful conflict resolution process in the island will need to address. We cannot ostrich like bury our collective heads in the sand - and, to mix the metaphor, ignore the elephant in the room. Whilst the goal of securing peace through justice is loudly proclaimed by the international actors, real politick leads them to deny the justice of the Tamil Eelam struggle for freedom from alien Sinhala rule. The harsh reality is that on the one hand international actors are concerned to use the opportunity of the conflict in the island to advance each of their own strategic interests - and on the other hand, Sri Lanka seeks to use the political space created by the geo strategic triangle of US-India-China in the Indian Ocean region, to buy the support of all three for the continued rule of the people of Tamil Eelam by a permanent Sinhala majority within the confines of one state..." International Dimensions of the conflict in Sri Lanka, 2 October 2007

The LTTE was not listed by the EU until May 2006 - until that is, the EU felt that its 'good cop' role vis a vis the US 'bad cop' role in the Norwegian sponsored peace process, was not yielding the returns that both the EU and the US had worked for and desired. The screw was then turned. And the Co-Chairs Press Release came within 24 hours of the EU listing. Here, the diplomatic routine followed by the EU, the UK and the US was not dissimilar: first threaten to ban, then ban but not implement, then implement the ban in a calibrated fashion, and finally suggest that the ban may be removed if only the LTTE will 'play ball'.

Given that the listing was a political decision, any decision by the LTTE to challenge the listing will also be a political decision. It is a political decision that the LTTE will have to be make on the basis of its own understanding of all the elements of the prevailing political situation. I myself do not have an understanding of all those elements that the LTTE may regard as relevant and I cannot and do not express an opinion on that matter - nor for that matter do I seek to second guess what the LTTE may or may not want to do.

I will confine myself to some legal issues that may be relevant to any recourse to the Courts to challenge the European Union listing.

I like to believe that the law is not a jackass. Perhaps this is a self serving view influenced by my own legal training! Said that, I also believe that something which Dr Colin J Harvey said about international law has a general applicability to all law (to a lesser or a greater extent) -

"...International law is political. There is no escape from contestation. Hard lessons indeed for lawyers who wish to escape the indeterminate nature of the political. For those willing to endorse this the opportunities are great. The focus then shifts to interdisciplinarity and the horizontal networks which function in practice in ways rendered invisible by many standard accounts of law. This of course has important implications for how we conceive of law's role in ethnic conflict. We must abandon the myth that with law we enter the secure, stable and determinate. In reality we are simply engaged in another discursive political practice about how we should live..."

If we recognise that we are engaging 'in another discursive political practice', the opportunities are great to constructively engage in the legal process. Good law is sound commonsense. If something offends commonsense, it cannot be good law. And courts will be reluctant to uphold it. Courts will be reluctant, because to offend commonsense would be to erode the confidence that a people have in the judicial system - a confidence that is essential to ensure the continuing stability of the existing order. And for the courts, that usually makes political sense as well.

The legal position in relation to the listing by the EU may be straightforwardly stated. It is not overly complex. The listing is a decision taken by the executive in the exercise of powers conferred by the law. The listing is an executive decision within a legal frame. A legal challenge to the listing decision may therefore take three forms

a challenge to the executive decision
a challenge to the legal frame
a challenge to both the executive decision and the legal frame

The first course - i.e. a challenge only to the executive decision - is the way of appealing to the executive to review its decision and/or going to the courts to seek a judicial review of the decision without challenging the validity of the legal frame itself. Indeed in the case of an appeal to a body like a review tribunal created by the same legal frame (which empowered the executive to act), the appellant implicitly accepts the validity of the legal frame - and, therefore, cannot challenge it in the same proceedings.

The second course - i.e. a challenge to the legal frame - is to contend that the provisions of the law under which the executive purported to act is invalid and that therefore the executive did not have the power to make the decision that it did.

The third course is self explanatory - it is a combination of the first two.

In my view the first course has little or no chance of success on legal grounds. Said that it is true that the executive itself may be wanting to review the decision on political grounds and may make it known that it is seeking a politically acceptable (and calibrated) way of doing so. Such an approach may stem from a recognition by the UK, the European Union and the US that ambiguity is not without its constructive uses - more so because of the need to wean not so much President Rajapakse (and US green card holders Sarath Fonseka and Gothabaya Rajapakse) but President Rajapakse's left leaning political constituency from a permanent dependence on China/Iran.

Be that as it may, the reason that I am of the opinion that the first course of action has little or no chance of success on legal grounds are several.

For one thing, on the ground of national security, the material on which the listing was made will not be made available to the appellant for cross examination - because to do so would be to put at risk the national security apparatus of the state, which must function in secrecy. The result is that much of the material on which the executive made its decision cannot be tested for its veracity.

Additionally, Courts have always been reluctant to substitute their own assessments and opinions to that of the executive on matters of 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 expressed view of the executive. It is said that the law has empowered the executive (and not the judiciary) to assess matters relating to national security. In the telling phrase of Lord Atkin in his dissenting judgment in Liversidge v Anderson in the Judicial Committee of the House of Lords in 1942, the courts become "more executive-minded than the executive".

In my view the second course - i.e. a challenge to the legal frame - has a better chance of success. The legal frame can be challenged on several grounds including the ground that the vagueness and the breadth of the definition of terrorism in the legal frame offends the rule of law and fundamental freedoms - and in effect, clothes the executive with arbitrary powers, akin to the powers of the old English chancery courts where equity was measured by the length of the Lord Chancellor's foot. The essence of the rule of law is that the executive cannot act arbitrarily.

I myself take the view that legal frames which conflate the two words 'violence' and 'terrorism' offend common sense. A simple question that may have to be asked is whether there are any circumstances under which a people may lawfully resort to violence to secure freedom from alien rule - and if so what are those circumstances.

Admittedly here too Courts may be reluctant to annul the provisions of a law which are intended to advance national security. At the same time Courts may be compelled to address the growing concerns of liberal opinion in Europe and elsewhere that 'liberty may come to die by the efforts made on her behalf' - and Courts may therefore seek to interpret the provisions of the law in such a way that they are at least, not seen to offend fundamental freedoms, international law and standards.

The third course is to combine both the first and the second course. This approach has the advantage of securing a broad based public diplomacy platform. Said that, I am of the opinion that it is important to secure that the emphasis on the second course i.e. the attack on the legal frame, is not diluted in any way - and at any stage.

So much for substantive law. As for procedure, I agree with the view expressed by Professors Bill Bowring (Director of Human Rights and Social Justice Research Institute, London Metropolitan University) and Douwe Korff (London Metropolitan University) in Terrorist Designation with Regard to European and International Law:The Case of the People's Mojahedin Organization of Iran (PMOI)-

- that legal challenges are pursued with vigour at the national level, first of all in countries in which it is likely that the courts will decline jurisdiction on the basis that the issue is entirely determined by EC/EU law: this would allow for an immediate submission thereafter of an application to the European Court of Human Rights (ECHR); and

- that an organisation pursue challenges in countries in which it has a good chance of the domestic courts being willing to hold (either on the basis of the ECHR, where the Convention is directly applicable and given a high status, or on the basis of the national constitution) that they should be granted full "access to court", with the (domestic) court in question being able to assess the underlying matters of law and fact in full

- We would urge caution over pursuing cases through the Court of First Instance and the European Court of Justice: as ... these courts are ill-equipped to deal with the matters in question and are likely to adopt a minimalist approach to any judicial review they may carry out of the Common Positions and Regulations concerned - which would (we feel) set a bad precedent for any Strasbourg adjudication (by the Europan Court of Human Rights) on the matter."

I too would urge caution over pursuing cases through the Court of First Instance and the European Court of Justice as I agree with the view that these courts are ill-equipped to deal with the matters in question and are likely to adopt a minimalist approach to any judicial review they may carry out of the Common Positions and Regulations concerned - which would set a bad precedent for any Strasbourg adjudication on the matter. See also generally Terrorism: European Union Law & Practise and Terrorism: United Kingdom Law & Practise.

Finally, it is perhaps appropriate that I include here an exchange of emails that I had with a visitor to tamilnation.org, some 10 years ago. This was at the time that a court challenge was launched on the US designation of the LTTE as a 'terrorist' organisation.

A visitor to tamilnation.org wrote to me in July 1998 -

"....While I ask you to pardon me for raising this issue, I have briefly talked to Rudrakumaran and he has welcomed and encouraged my suggestion to write to you. Away from the battles at home, all of us are aware that a verdict in favor of the LTTE in the D.C courts will be a significant victory in our struggle. While the popularity of the TamilNation soars, the Tamil Nation needs your services at the courts."

And I replied in July 1998 -

"Many thanks for your comments. Around the time that the (US) case was instituted, I was in fact asked by Rudrakumaran to assist. But I declined. There were several reasons for my decision.

(On the one hand) I recognised that there was a need to challenge the US (and the Canadian) decision to categorise the LTTE as a 'terrorist' organisation. If no challenge was launched, it may have meant an acceptance of the label. At the same time I felt that it was necessary to consider the effect of an adverse result in a court case - i.e. the effect if the executive decision was not nullified, but 'validated' by a judgment of a court. Here, several aspects had to be reviewed, including the fact that an ongoing court case, may in fact keep the door open for some sort of negotiated resolution of the matter...

However, I did feel that whatever approach was adopted, it should take into account a dispassionate assessment of the chances of eventual success in a Court challenge.

The important point to remember is that the US Courts do not (repeat, not) have the power to look into all the facts, ab initio, and decide for themselves whether, on the facts the LTTE, is a 'terrorist' organisation. The Court's power to review is heavily circumscribed - without going into too much of the law - it will be fair to say that the Courts power is limited to determining whether the executive, on the available material, was wholly unreasonable to take the view that it has taken.

This is a very heavy burden, particular in cases where national security is involved. Again, on the ground of national security, some of the material on which the executive may rely, will not be disclosed to the opposing party - and there will be no opportunity to properly rebut such material or test its veracity.

The law in this area has developed on the basis that in matters of national security, courts should not second guess the executive unless the executive can be shown to have acted 'arbitrarily' or in 'bad faith'. The rationalisation is that the relevant law itself has empowered the executive (and not the courts) to determine whether an organisation is a 'terrorist' one or not - and that courts should not use the instrument of 'judicial review' to supplant the decision of the executive with their own decision. It was, for instance, this view that prevailed in the Suresh case.

Lawyers who advise a client in this context, will need to make a fair assessment of the chance of success... This is not to say that skilful advocacy may not help, but it is to point out the serious limitations of the legal frame within which an executive decision related to national security may be challenged. I believe that it is important that support for the court action should be mobilised on the basis of a realistic and public assessment of these limitations, so that Tamil (and other) opinion is not disheartened should there be an eventual adverse verdict.

I am reminded of the occasion when I was retained to appear in the Thangathurai/Kuttimuni case and my first meeting with Nadarajah Thangathurai. (You will find a reference to it in the Sabaratnam Memorial lecture at the tamilnation website). I met Thangathurai at the high security Panagoda Prison, in early 1982, a few months before I commenced his defence at the trial at the Colombo High Court for offences under the Prevention of Terrorism Act. I remember telling him that whilst I would defend him to the best of my ability, it was unlikely that a Sinhala Judge acting within the framework of the Sri Lankan judicial system would do that which was fair and that it was inevitable that he would be convicted on the basis of alleged confessions, even though they had been extracted by torture.

I told him that if he had retained me in the belief that my appearance on his behalf would lead to an acquittal then I felt that I should declare to him at the very beginning that I for one did not believe that I would be able to achieve such a result. I shall always remember Nadarajah Thangathurai's response. It was immediate and spontaneous. He spoke in Tamil:

'When we first involved ourselves in this struggle, we knew that a situation such as the present one may arise - please do not feel sad about this'.

Thangathurai also added: "The court case affords us a platform to further our struggle and we are content if this can be achieved - whatever may happen to us."

In the Sri Lanka situation, at that time in 1982, the court proceedings though blacked out in the Government controlled English press, did receive daily widespread publicity in the Tamil media and this contributed in some measure to secure the objectives that Thangathurai had in mind.

Whether the court case in the US may be used as a platform to further the struggle is one thing - but, whether a US court will set aside the decision of the executive in a national security matter is another matter.

Again, the comments that I have made here are in respect of the court case brought against the categorisation of the LTTE as a 'terrorist' organisation. The attack on the constitutional validity of the law itself is another matter - because in this latter case, courts are concerned with determining whether the law itself offends fundamental rights and they are not constrained by their reluctance to invalidate an executive decision in the area of national security.

The harsh political reality is that non state nations do not 'become' states as a result of a binding judgment delivered by a court of law on the legality of their claims. A definitive characteristic of a state is that it enjoys a monopoly of lawful coercive power within its territory and history shows that states have acquired that monopoly by struggle and not by judgments of courts of law - and often, despite such judgments.

It will be unwise to act on the basis that an armed resistance movement seeking independence from an existing state (which is a member of the United Nations) will be declared lawful by a court in another state (which is also a member of the United Nations) - against the political will of the state in which that court functions. It is unlikely that the claims of liberation movements will be determined in the courts of 'justice' in New York, New Delhi nor for that matter at the annual sessions of the United Nations Commission on Human Rights - unless ofcourse the political will already exists.

Though it was flattering to read the expression of your views concerning myself, I believe that the truth is that the Tamil Eelam nation has no need for my legal services in the court arena. But, of course, that is not to say that the court case may not be usefully employed to mobilise support outside the court arena - and generally, for the justice of the struggle for Tamil Eelam.

Finally, may I reiterate my view that the US court case on the LTTE question, is in the capable hands of Rudrakumaran, and I have every confidence in his ability - and it will not fail, due to any lack of skills on his part."