Introduction
Eelam as a de facto state exists today. It is a territorial
entity that is controlled by a definite group of people who have established
a definite government within it. It satisfies all the criteria that the
state of Sri Lanka satisfies. The state of Sri Lanka today does not have
definite borders. The legitimacy of its government to being a democratic
government is suspect
because of widespread vote-rigging. That "government"
routinely
bombs a part of its population. In this context, Eelam as a de facto
state already exists.
The issue is whether the right to secession has given it a
legitimacy that demands that the state be recognised as a de jure state.
This is a question that must be examined dispassionately, without the
emotion that normally clouds the consideration of the issues involved. The
extent to which the rapidly emerging international law on this and related
areas may help in the assertion the rights of the people of Eelam as well as
their protection from the violation of their rights also needs to be
examined.
Evolution of the right to self-determination
Self-determination, as a
political concept, was articulated at the end of the First World War in
order to provide for the redrawing of the borders of European states to
ensure that there was some coincidence between the ethnicity of the states
and their boundaries. A system of minority treaties ensured that minority
ethnic groups that remained within states after the redrawing of the
boundaries had a measure of protection. But, the notion of
self-determination was not extended by the then prevailing international law
to the colonial states of Africa and Asia which remained subjugated to
imperial rule.
Self determination was wrested for them through the peaceful
struggles of Ghandi or through the violent struggles of Kenyatta and
Sukarno. It was then that self-determination came to embrace the peoples of
Africa and Asia and became a doctrine of liberation of colonial peoples from
imperial bondage. So, the concept of self-determination had an evolutionary
content that was extended to end the domination of one people by another.
The triumphant legal assertion of that doctrine was when the United Nations
General Assembly passed the resolution on the Granting of Independence to
Colonial Peoples which asserted the ending of colonial domination of one
people by another as a mandatory norm of modern international law.
Yet, the newly independent African and Asian states feared
the very doctrine that led to their creation. These states were the creation
of imperialist design which often brought together peoples of wide ethnic
and religious diversity for the convenience of the imperial power. The
straight boundary lines of African states has tales to tale of imperial
intentions to carve up a continent as if it were a cake. Many Asian states,
Ceylon included, brought together previously existing kingdoms under one
rule, without regard to history, culture or religion. The largest states of
Asia, India and Indonesia, brought together large kingdoms of the past and
peoples with distinct cultures and histories.
The picture was repeated in Africa. These states then saw
the doctrine of self-determination as inimical to their continued existence
as states with the inherited imperialist boundaries and sought to undermine
the force of the doctrine of self-determination. They quickly began to argue
that the validity of self-determination was exhausted after decolonisation
and that the doctrine had no continuing existence in modern international
law. Yet, self-determination had nothing to do with states. It was the
movement of peoples which gave it strength and it was an idea founded on
justice. As such, it had the vigour to survive this onslaught of the states,
which feared that they faced dissolution if the doctrine was kept alive.
Continuing Validity of Self Determination
The Biafran war in Nigeria was one of the first test cases.
Punjab in India was another. In both instances, the storm was ridden out.
The international community was not ripe for the idea of involuntary
secession. The Organisation of African Unity responded to the Biafran war by
asserting the territorial integrity of African states and resolving that
there was no case for break-up of African states. Punjab was a situation in
which India steadfastly denied the right of secession to a minority. Its
assertion was based on the fact that if secession was to be permitted it
will start the break-up of India according to ethnic lines. Yet, Pakistan
had earlier been born due to the partition of India.For the second time,
another state, Bangladesh, was born out of a self-determination struggle of
the Bengali people. There was a lingering view that had to be accommodated
that ethnicity did matter, particularly if it was the basis of
discrimination or destruction of culture and life. There was an obvious need
for rethinking. Bangladesh and Eritrea, which seceded from Ethiopia,
accelerated the idea that the old law on the subject had to be rethought.
Philosophical Impediments to Right of Secession
The rethinking was impeded not only by the newly independent
states of Africa and Asia which resented a doctrine which may lead to their
fragmentation, but by prevailing Western political theories relating to
human rights. Western liberalism has always emphasised the promotion of
individual liberties and not concentrated on group rights or the rights of
peoples. That tradition held that if individual rights were protected, other
values will flow in accordance with the choice of individuals. This theory
concentrated on the protection of the civil and political rights of persons
in the belief that if these were guarantees ethnic and racial groups which
consisted of individuals in any case will not have any grounds of complaint.
The state which guarantees these rights should not be subjected to claims of
secession by ethnic groups living within it.
The
Canadian Supreme Court's rejection of the right to secession of the
French speakers in Quebec was firmly grounded on this reasoning. The Court's
view was that there was no evidence of discrimination against the French in
Canada and therefore, there was not basis for the claim of secession. It is
interesting to note that successive Sinhalese governments in Ceylon have fed
this Western system in various ways.
They have packed their administrations with sufficient Tamil
stooges in order to show that there is no discrimination against the Tamils.
They have had human rights commissions which have not remedied violations
and commissions for missing persons which are shams. They have tried but
never convicted soldiers who have killed and raped. These hoaxes
unfortunately have kept the Western states in the delusion that the
government is doing what it can to maintain human rights when the contrary
has demonstrably been the case. Perhaps, the Western states found it
convenient to believe these hoaxes so that they could claim to have cleans
consciences, for it is unlikely that the sophisticated embassies they
maintain in Colombo were unaware of the true picture. The Sinhalese
government has played the system well. The tide however is turning. It is
time now for the Tamils to exploit the rapid changes in the system to their
advantage.
The Western liberal tradition emphasizing
individual human rights is on the wane, as it comes increasingly to be
recognised, even in the West, that there is a case for the protection of the
rights of linguistic and religious groups within societies. Thus, the 1991
Proposal for the European Convention on the Protection of Minorities clearly
acknowledges the collective dimension of the rights of ethnic groups. As
Western societies become multi-ethnic, the emphasis on individual rights
continues to remain but there is also an increasing awareness that ethnic
rights have to be protected.
The Western tradition
that has remained impervious to group rights may now be shifting. This
may portend a greater acceptability of the right of secession by states
accustomed to the liberal tradition and make them more aware of the need for
the assertion of group rights.
International Law and Ethnic Discrimination
The modern dilemma of international law is to ensure that
the international state system remains unaffected through the assertion of
the principle of territorial integrity but at the same time ensure that the
rights of ethnic groups within states are protected. This was done in the
Resolution on the Friendly Relations between States which effectively
preserves the territorial integrity of states but provides that this is
subject to the proviso that all peoples within the state are treated
equally.
Territorial integrity is premised on the equal treatment of
the ethnic groups within the state. It is implicit that where an ethnic
group is not provided equality, it has a right to assert its claims to
equality and ultimately to secession. International law has thus reconciled
notions of self determination, equality of peoples and territorial
integrity. It has done so, firstly by giving the state the right to its
integrity by ensuring that all people are treated equally and secondly by
giving the right to secession to ethnic groups as a sanctioning right in
situations where equal treatment is not forthcoming.
So a state like India, on this model, need never fear
secession as it ensures through its federal structure as well as through
meaningful equality guaranteed by a vigourous Supreme Court a system of
individual and collective rights that are the envy of any state. The holding
out the bogey that if Eelam were to be created, it will set off a domino
effect of secessions in India is an inexactitude. The creation of Bangladesh
did not result in such an effect and there is no reason why the creation of
Eelam should as long as India preserves her democratic model of
federalism.This enables all its diverse ethnic groups a share in her
political and cultural life and revels proudly in the diversity of her
religions, cultures and peoples.
Events have moved rapidly on this front
in the 1990s. Whereas one had to struggle to find instances of secessionist
claims in the past,
they had become
frequent in the last decade of the twentieth century. The dissolution of
the Soviet Union gave rise to many states largely based on the ethnicity of
their people. The break-up of Yugoslavia led to harrowing miseries and to
much rethinking on the issue of secession. Czechoslovakia broke in two. The
idea that ethnicity remained a potent force in modern international
relations was demonstrated. That the preservation of states is not a value
in itself gained much momentum as a result of these events. The applauded
destruction of East Germany by its unification with Germany demonstrated
that states do not exist for themselves but to fulfil the desires of people
within them. The notion of territorial integrity diminished in vigour in
just a few short years. We have to just hang on until these trends really
take hold. When these trends get stronger with time, the cause of Eelam will
also be strengthened.
It is in the context of
these developments that the Tamil struggle for Eelam has to be analysed.
These are trends that propagandists for Eelam must harness and utilise in
order to further their objectives of ensuring the furtherance of the cause
of Eelam. Arguments that favour Eelam in the context of modern tendencies
emerging in the international law of self-determination must be prepared and
advanced. Some of these arguments are set out below.
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1. The original
self-determination in Ceylon in 1947 was flawed.
When the British gave independence to Ceylon in
pursuance of the right of colonial self-determination, they
should have ensured at the least, there was adequate protection
of the rights of the Tamils if not a restoration of the status
quo which existed before their conquest of Ceylon. At the time
of their conquest, the Tamil homeland was administered
separately and prior to European colonisation, there was a
separate kingdom in the Tamil homelands. Self-determination
imposed a duty to restore the status quo. The British did not
satisfy the duty though they were conscious of it when they
devised the unsuccessful technique of minority protection in the
Soulbury constitution. The self-determination granted Ceylon was
therefore flawed and should be set right. The responsibility for
this is with Britain and is owed to the Tamil people. (The
authority for this viewed is canvassed in a longer article on
the subject). The way of setting it right is to recognise the
right of the Tamil people in Ceylon to self-determination.
2. The Persistent
Discrimination of the Tamils gives rise to a Right to Secession.
It has already been pointed out that the right
to self determination does not arise ordinarily in states which
have minorities, except where such minorities have suffered
heavy deprivation. Thus, in India, where constitutional
safeguards of minority protection exist in a meaningful way,
there can be no right of self determination in the minorities,
simply because the Central government forestalls this
possibility by providing every avenue for all minorities to
secure their cultural identity and political aspirations. The
situation is otherwise in Ceylon, which has been in the
vicious grip of
Sinhala-Buddhist chauvinism which has found it necessary to
strike at the Tamils in order to ensure that there is a base for
their own ethnicity, which is disparate and doubtful.
The Sinhalese, being a polyglot people many of
whom came to the island successively as fisherman, cinnamon
peelers and workers from other parts of Asia, need to badger the
Tamils to establish an identity for themselves. Quite apart from
resorting to contradictory fictions such as Aryan roots and the
specially favoured people of the world renouncing Buddha, they
have sought to forge their nationhood through the hatred of the
Tamils.
 This
has manifested itself not only in
discrimination of the Tamil people and other minorities,
such as the Muslims and the Catholics, through the law but by
the periodic unleashing of violence against the Tamils in the
earlier years of independent Ceylon followed by
the
incessant bombings of the innocent civilians in later times.
Tamil youths have been routinely rounded up,
tortured and
killed.
Tamil women have been raped and murdered. These incidents
have been well documented in the reports of Amnesty
International, Human Rights Watch and other human rights
organisations.
The Tamil politicians have
tried to assert their rights
through peaceful and democratic means. Failure of such
assertions led to non-violent protests in the Ghandian manner.
The
response of the Sinhalese government was to unleash terror and
violence upon those who participated in these non-violent
protests, indicating perhaps that the movements such as
those of Ghandi and Martin Luther King can succeed only if they
are directed at civilized governments.
All that the Tamils received for their efforts
was an army of occupation sent to their homelands to repress,
pillage and plunder. In these circumstances, there can be little
doubt that after all peaceful methods of redressing inequalities
had failed, a right to self-determination arose in the Tamils.
In the Vaddukoddai Resolution (1976), the elected
representatives of the Tamils called for a separate state for
the Tamil People and stated that the Tamil youth had the right
to wrest such a state by any means whatever. Since a right to
secession in international law had matured by now, this
political declaration was in accord with international law which
recognised that self determination may be claimed by a minority
which had failed to redress its legitimate rights through
democratic means. The
ongoing violent assertion of the right of secession is fully
in accord with international law.
The war for secession has
been going on for over seventeen years. The war, being conducted
in pursuance of the right of secession is a war between two
peoples and must be characterized as
an international war. The Sri Lankan government is in error
in regarding the war as a civil war. The Sinhalese government
has not been able to end it militarily. The LTTE has fought the
war along conventional lines and has followed the rules of
warfare whereas the Sinhalese government has constantly bombed
the civilians it claims as its citizens in contravention of all
rules of international warfare and of humane considerations. The
issue that now needs to be considered are
the ways that can be employed to end this war. |
Means of Settlement
It is necessary that as the war goes on the possible avenues
of peace be explored. The war is with the
Sinhalese chauvinists
who have employed the rural Sinhalese youth to fight a war that they do not
want to fight if not for economic need of the salaries promised. It is not a
war with the Sinhalese people.
1.Devolution.
The first suggested solution is devolution. It is the favoured
solution of the third states as it preserves the unitary state in
Ceylon. It is also the solution advanced by the present Sinhalese
government. But, it is not an acceptable solution to the type of
situation that prevails in Ceylon at the moment. Devolution works as a
solution where it takes place prior to violence between the contending
communities. The devolution in the United Kingdom will work simply
because it is in anticipation of any future problem that could arise
between the different ethnic groups. In Ceylon, the situation is
otherwise. Devolution may have worked when initially tried out in the
Bandaranaike- Chelvanayagam
and
Senanayake-Chelvanayagam
pacts.
Both, were scuttled by Sinhalese racists. The
Buddhist priests
who are still active were leading antagonists of both pacts. Since
then, the violence between the ethnic communities has escalated to
war-like proportions. In that context, after the flowing of much blood,
there can be little prospect of devolution being successful.
History shows that devolution agreements have been
reversed by the dominant group. It was tried out in Ethiopia and the
Sudan and their examples show that unless internal power balances exist,
they cannot succeed. Wars in both these states were recommenced after a
short while. In the Ceylonese situation, Sinhalese chauvinism has shown
itself to be thoroughly repressive and averse to any settlement that
recognises the rights of the Tamils. The Tamils are unlikely, in turn,
to settle for what was contemplated in the 1950s after having suffered
such agony. Having taken up arms, the Tamils will never consent to
devolution as the solution to this problem.
2. Confederacy.
This solution was advocated by the Chief Minister of
Tamil Nadu as well as by a former US ambassador to Ceylon. A confederacy
must be seriously considered. It is an association between two equal
people. The making of a confederacy recognises the distinctness of the
Tamil people and their homelands. It also will lead to the
demarcation of the boundaries of the Tamil homelands in a
constitutive document. These are gains to be had. It will bring the war
to an end and ensure that confederate arrangement works as there is the
threat of the resumption of war.
The Tamils should never lay down arms so that this could
be ensured. If war is to recommence, there is still the fact that the
borders of the Tamil state would have been drawn up in a recognized
manner. There will be a constitutional document which will draw up the
manner in which power is to be shared. This would usually involve
matters such as the conduct of foreign policy, the regulation of
currency and other common factors being controlled by the joint
government, leaving all else for decision by the two autonomous
governments. It is unlikely that the Sinhalese government will accept
this reasonable proposal.
Strategically, confederation may be
considered for the reason that it gives the Tamil homelands clearly
defined borders and creates a breathing space for some time. Generally,
confederations, as solutions, have not worked. It was suggested in the
Vance-Owen Pact for Yugoslavia but never got off the ground.
Confederations have generally not worked as solutions to ethnic crises.
3. Secession
The best solution is the creation of Eelam. This does
not require any formal legal act. The mere fact that territory has been
consistently held will create Eelam. As of now, Eelam, exists as a de
facto state. The Sinhalese government has not been able to assert
physical control over the areas claimed as the traditional homelands of
the Tamils. Mr Pickering, the United States envoy, has said that the
international community will not recognise Eelam. But, this is not a
precondition. Many states exist without such recognition. China did
quite alright without American recognition for a long time. Taiwan does
flourishingly well without recognition. Eelam will similarly survive.
But, recognition will come eventually.
Already, foreign states regard Eelam as an entity for
they meet with representatives of Eelam for peace talks and engage in
other diplomatic initiatives. The de facto existence of Eelam is a
present fact. The conversion of it into legal status will be furthered
by evolution of the law. For, secessionist movements are on the rise. As
Aceh and Irian Jaya in Indonesia, Chechnya in Russia and other movements
accelerate, international law will have to move rapidly to recognise the
real problems these movements present and move away from its stance that
favoured existing states. Eelam will benefit from these international
trends. In human affairs, the effluxion of time solves many things in a
manner that promotes justice. The cause of Eelam is a just and change
will come which assures its success.
What Expatriate Tamils Can Do on the Legal Front
The question must be raised as to what expatriate Tamils can
do on the legal front. The extent of the relief and other work for their kin
is indeed praiseworthy. But, the identification of the legal measures that
could be taken will promote the struggle for Eelam further. Some thoughts
are offered so that the struggle for Eelam could be enhanced through legal
means as well.
1. Promote the right to
secession.
As the struggles of other oppressed people succeed, so
will the struggle of the Eelam people. In the colonial age, it is the
success of some states like in India and Kenya for their independence
which resulted in the freedom of the other colonies through the uniform
application of self-determination. Likewise, if the struggles of the
Palestinians, the Chechnyans and others like them will succeed, the
right to secession will come to be established more firmly than it is
now. Though at present, there are precedents such as Bangladesh and
Eritrea, these precedents should increase for the proposition relating
to secession being a right becomes clearer.
Linkages must be
formed with all the people struggling for their homelands so that
their causes could be advanced in solidarity.
2. Address the liberal opinion
among the Sinhalese.
If peace comes, it should last so that future
generations of Tamils and Sinhalese could live amicably without
bloodshed. It is necessary for this reason to start addressing the
liberal opinion among the Sinhalese who may constitute the silent
majority. They do not wish to send their young to this useless war and
desire peace. It is necessary to address them and this could be done
more effectively from abroad.
3. Institute actions for war crimes against
travelling politicians and military leaders.
The recent case against Pinochet in England demonstrates
that courts in England are not averse to the trial of war criminals and
torturers who operate in other states. More than the English courts, the
courts in the United States have a well-settled course of litigation on
similar lines and there is a better statutory basis for such actions
provided in American law.
It is clear that there is an
enormous amount
of torture that has taken place against Tamil civilians and
horrendous war crimes have been committed against the Tamil people.
Incidents such as the
bombing of the Navaly Church, the
Chemmani massacres, the
rape and
killing of several Tamil girls are well-documented. It is necessary
to ensure that more evidence is collected and the persons directly
responsible as well as in command responsibility are identified.
The
President of course has command responsibility. It is necessary to
select a victim or a kin of the victim whose case is well supported by
evidence to bring the suit. Already, there are signs that legal action
is beginning to hurt.
A former soldier was reportedly denied asylum in
Australia by the Australian courts because of his involvement in the
massacre of Tamil civilians. There was a recent case in Germany
involving the rape of a Tamil girl. But, these are cases that indirectly
have exposed the existence of torture and atrocities committed by the
Sinahalese government. A more direct action before the courts of a
Western state will ensure that documentary evidence is presented to a
court.
This will result in a finding that could be used as a
precedent to convict other army officers as well as political leaders.
Such actions will have an immediate impact on the situation in Ceylon.
There will be embarassment created for the government and deterrence
created against the politicians and soldiers in their murderous campaign
against the Tamils.Most of the Sinahlese leaders and top army men have
the proceeds of their corruption stashed away in European banks. They
will think twice before engaging in anti-Tamil campaigns.
The least that the lawyers of Eelam living abroad can do
is to take up this challenge and
provide a network around the world committed to the tracking down of the
Sinhalese who committed atrocities against the Tamils. There were
Jews who did this successfully. This is one way in which these lawyers
can help in the protection of their bretheren in Eelam and further the
cause of Eelam.
