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EElam Tamil Armed
Resistance & the Law
Nadesan
Satyendra, 1998, 2007
Introduction
The preamble to the
Universal Declaration of Human Rights declared in 1948:
"Whereas it is essential if man is not compelled as a last resort to
rebellion against tyranny and oppression, that human rights should be
protected by the rule of law.''
In the years following that Declaration, many a people have been compelled to
rebel against tyranny and oppression and armed conflicts have proliferated
throughout the world.
And, it appears that the art of war has not changed much from the times of
Sun Tzu who declared more than a thousand years ago:
- All warfare is based on deception.
- Hence, when able to attack, we must seem unable; when using our forces, we
must seem inactive; when we are near, we must make the enemy believe we are
far away; when far away, we must make him believe we are near.
- Hold out baits to entice the enemy. Feign disorder, and crush him.
- If he is secure at all points, be prepared for him.
- If he is in superior strength, evade him.
- If your opponent is of choleric temper, seek to irritate him.
- Pretend to be weak, that he may grow arrogant.
- If he is taking his ease, give him no rest.If his forces are united,
separate them.
- Attack him where he is unprepared, appear where you are not expected.
- These military devices, leading to victory, must not be divulged
beforehand.
- Now the general who wins a battle makes many calculations in his temple
ere the battle is fought.
- The general who loses a battle makes but few calculations beforehand.
- Thus do many calculations lead to victory, and few calculations to defeat:
how much more no calculation at all!
- It is by attention to this point that I can foresee who is likely to win
or lose.
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However, in the end, the success of a
rebellion against
alien rule, will be measured by the extent that it secures
international recognition. The matter was put
somewhat more circumspectly at the
Bergen Conference in 1996:
" In all civil war situations, the government starts with a major
advantage in that it has the formal and, at least, initial monopoly on
international recognition. In order to challenge the government, a rebel
movement must close some of the gap in status and international access."
The question arises: on what is a government's 'formal
and, at least,
initial
monopoly on international recognition' based? It will be
idle to pretend that international recognition will
not be determined by political and strategic considerations.
At the same time, it is not a simple matter of might being
always right.
There is a need for political leaders to act (or at least
be seen to act) in accordance with international law. The
rule of law is the proclaimed goal of all political
leaders - without exception. In this way, they seek to gain
broad based support for their actions, both within their own
countries and outside. Democracy needs to nurture its
liberal foundation, if it is to succeed in its advocacy of
evolutionary (as opposed to revolutionary) change. And it is
here, that the legal status of an armed struggle
assumes a particular significance.
Again, the
lessons of Vietnam and Algiers
have not been lost on Governments that failed to quell
liberation movements despite having recourse to superior
arms and resources.
Michael
Schubert writing
'On Liberation Movements And The Rights Of Peoples'
pointed out
"The French Chief of Staff Andre Beaufre wrote about his own experience
in Algeria and Vietnam in his 1973 German-language book 'Die
Revolutionierung des Kriegsbildes':
'The surprising success of the decolonization wars can only be explained
by the following: The weak seem to have defeated the strong, but actually
just the reverse was true from a moral point of view, which brings us to the
conclusion that limited wars are primarily fought on the field of morale.'
(p.34)
In order for... states to quickly and effectively wipe out "revolt",
which could get out of hand despite technical superiority (read:
better weapons) due to the
political and moral convictions of the mass movement, it is necessary to
make comprehensive analyses early on and to take effective action in the
psychological arena. It's no coincidence, therefore, that military and
police circles seem to stress the benefits of "psychological warfare".
Ever since the U.S. Defence Department organised the first ever World
Wide Psyops Conference in 1963 and the first NATO Symposium On Defence
Psychology in Paris in 1960, many NATO leaders and several scientists have
been working in the field of psychological counter-insurgency methods (cf.
The detailed reports and analyses of P. Watson, Psycho-War: Possibilities,
Power, And The Misuse Of Military Psychology, Frankfurt 1985, p.25ff.).
The central aim of this defence approach is to destroy the morale of the
insurgent movement at the early stages, to discredit it and destroy it using
repressive means like long periods of isolation detention in prisons,
thereby preventing a mass movement from starting which could be hard to
control with conventional means.
Defaming the insurgents as "terrorists" and punishing them accordingly -
thereby ignoring
international law concerning the rights of people in war - is a
particularly useful means."
It is no accident, for instance, that Sri Lanka and
states who are concerned to secure the status quo of
territorial boundaries imposed by the old colonial rulers,
have chosen to categorise the Liberation Tigers of Tamil
Eelam as a "terrorist" organisation and to deny to the Tamil
resistance movement the legitimacy that international law
may accord.
The views expressed by
Eduardo Marino in 1987 remain valid even today:
"In characterising the Tamil guerrilla, if terrorists are
to be called those who have had recourse to terrorist acts, then everyone
who has done so should be called a terrorist. It is simply a
dishonesty to confine the use of the term - as some newspapers and
politicians mainly in Colombo do - to Tamil guerrillas, while remaining
silent regarding dozens of officers and hundreds of soldiers and policemen
from the Sinhalese community whose acts, over the years,
have been well
documented."
It appears that the dishonesty of 'some newspapers and
politicians mainly in Colombo' has now spread to sections of the international
community as well.
It is therefore
not without importance that the legal status of the Tamil armed struggle should
be examined in a fair and open way, stripped of propagandist rhetoric.
Legal status of the Tamil armed resistance falls to
be considered at two levels
The legal status of the Tamil armed resistance falls to
be considered at two levels.
1.
Is the conflict in the island an 'armed conflict' within
the meaning of the 1949 Geneva Conventions and the
Additional Protocols?
2.
Is Sri Lanka's resort to arms lawful or is the Tamil
resort to arms lawful?
It is important to recognise that the two questions are
separate.
If the conflict is an 'armed conflict', then the
Geneva Conventions and humanitarian law relating to
armed conflicts would be applicable. However, the matter
does not end there.
The Geneva Conventions and the humanitarian law of armed
conflict regulate
the way in which parties to an armed conflict should
conduct themselves. The Geneva Conventions are concerned
with 'humanising' armed conflict.
The existence of an
armed conflict to which Geneva Conventions apply, does
not have the result that resort to arms by either party
to the conflict is necessarily lawful.
To put it in another way,
the fact that the LTTE is a combatant in an armed conflict
does not have the necessary result that its resort to arms
is lawful. After all, if it were otherwise, the fact that
Sri Lanka is a combatant in an armed conflict would render
Sri Lanka's resort to arms lawful.
The question whether resort
to arms by either party to an armed conflict, is lawful or
not falls to be considered under general international law.
Sri Lanka claims that its
use of armed force is lawful because it is directed to
secure the territorial integrity of an existing state. The
Liberation Tigers of Tamil Eelam claim that their struggle
is a struggle for self determination and that Sri Lanka's
use of force to quell a struggle for self determination is
unlawful.
The two principles of
international law i.e. the right of an existing state to
secure its territorial integrity and the right to self
determination of a people, may appear at first sight to be
irreconcilable, where a 'people' within the territorial
boundaries of an existing state, assert their right to self
determination. Admittedly, the question is not without
difficulty - but it is a question that cannot be avoided -
and must be addressed.
There are several layers to
the question. Firstly, there is a need to establish whether
the people of Tamil Eelam are a 'people' with the right to
self determination. Secondly, if they are such a 'people',
does Sri Lanka's refusal to recognise their right to self
determination and Sri Lanka's resort to armed
force to back that refusal, a violation of the UN charter
and the peremptory norms of international law?
Is a state's right to secure
its territorial integrity unlimited or is it dependent on
that state having recognised the democratic right of self
determination of the 'peoples' within its boundaries?
If democracy means the rule
of the people, by the people and for the people, then
commonsense (and law) may suggest that it also follows
that no one people may rule another. A state which denies
the right to self determination to a 'people' within its
territorial boundaries may be in a position no
different to that of the old colonial ruler who denied the
right to self determination of the 'people' whom the ruler
had conquered.
Is the conflict in the island an 'armed conflict' within
the meaning of the Geneva Conventions or simply an 'internal
disturbance'?
Let us now turn to the first
question. Is the conflict in the island an 'armed conflict'
or is it simply an 'internal disturbance'?
Article 1.1 of Protocol II provides that conflicts
"which take place in the
territory of a High Contracting Party between its armed
forces and dissident armed forces or other organised
armed groups which, under responsible command, exercise
such control over a part of its territory as to enable
them to carry out sustained and concerted military
operations and to implement this Protocol"
are armed conflicts covered
by
Protocol II to the 1949 Geneva Conventions.
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, it would
seem self evident that the conflict between Sri Lanka and
the LTTE is an armed conflict within the meaning of the
Geneva Conventions.
Article 1.2 of
Protocol II to the 1949 Geneva Conventions provides that
the
‘Protocol shall not
apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not
being armed conflicts’
Again, it would seem self
evident that the conflict in the island of Sri Lanka, which
has admittedly extended for a period of more than 15
years can hardly be described as a riot, or a series of
isolated and sporadic acts of violence.
Having said that, the words
of
Rein Mullerson,
Professor of International Law, Kings College, London are
not without relevance:
| "...(A)
difficult question relates to a threshold above
which an internal conflict can be considered as
such and not as a mere disturbance, tension,
riot or other violence not reaching dimensions
of an armed conflict. In the eyes of governments
which fight against rebels or insurgents the
latter are practically always common criminals.
Therefore governments often do not recognize
that there is an internal armed conflict giving
rise to the application of certain international
humanitarian norms. Certainly, in the light of
Russian law or Sri Lankan law Chechen rebels,
and Tamil Tigers are deemed criminals in their
respective territories. And these legal systems
are not unique in that sense. All states
criminalize acts which are aimed at overthrowing
existing governments by force. Many of these
freedom fighters are criminals under
international law as well. Hostage taking and
terror tactics used by some of them are clearly
contrary to international law. If international
humanitarian law extends its protection to them,
it also obligates them to comply with its
requirements..." (Rein Mullerson, Professor of
International Law, Kings College, London in the
Journal of Armed Conflict, Volum2, Number 2,
December 1997) |
Existence of armed conflict recognised by
governments
In the case of the conflict in the island of Sri Lanka,
the existence of an armed conflict has, in fact, (albeit, on
occasion) received recognition by governments including
those of India, Sri Lanka and the United States.
In 1985, the Indian government recognised the existence
of the armed conflict,
negotiated a
cease-fire and sponsored talks at
Thimpu in Bhutan between the Tamil combatants and a
specially appointed Minister of the government of Sri Lanka.
Further,
the Indo Sri Lanka Agreement signed by the Prime
Minister of India and the President of Sri Lanka in July
1987 recognised the Tamil militant movement as 'combatants'
in an armed conflict.
And, in 1989/90, the Sri Lanka government recognised the
existence of an armed conflict when it entered into a
cease-fire agreement with the Liberation Tigers of Tamil
Eelam and thereafter entered into
direct negotiations with the combatants.
Yet again, in 1995, the Sri Lanka government recognised
the existence of an armed conflict, entered into a
cessation of hostilities agreement with the Liberation
Tigers of Tamil Eelam and engaged them in direct talks.
In April 1997, the United States government recognised
the applicability of international humanitarian law to the
conflict in the island:
".. We are... troubled by the continuing failure of
the (Sri Lanka) armed forces and the LTTE insurgents to
capture POWs in numbers commensurate with the scale of
the conflict, since it suggests that both sides have
adopted a 'take-no-prisoners' policy. We call upon the
government and the LTTE, therefore, to observe
international humanitarian norms." (Intervention
by Head of US Delegation at the UN Commission on Human
Rights - Agenda Item on 'Violation of human rights
and fundamental freedoms in any part of the world' - 10
April 1997)
In February 1999, the U.S. Department of
State in its 'Sri
Lanka Country Report on Human Rights Practices for 1998'
reinforced this view by examining in a separate section,
the violations of the humanitarian law in internal conflict
in respect of the situation in the island.
And in February 2002, the international community recognised the Norwegian
sponsored
Ceasefire Agreement which provided for demarcated lines of control for Sri
Lanka and the LTTE.
Existence of armed conflict recognised by United Nations
Commission on Human Rights and by non governmental
organisations
Again, during the past several years, at sessions of the
UN Commission on Human Rights and the Sub Commission on
Protection of Minorities, several public pronouncements have
been made, recognising the existence of an armed conflict in
the island, and the applicability of the rules of
humanitarian law to the conflict.
In a
landmark resolution, adopted unanimously on 12 February 1987,
the UN Commission on Human Rights recognised the application
of the universally accepted rules of humanitarian law to the
armed conflict in the island.
The UN Commission on Human Rights called upon Sri Lanka
'to intensify its co-operation with the International
Committee of the Red Cross in the field of dissemination and
promotion of international humanitarian law' and invited
'the Government of Sri Lanka to consider favourably the
offer of the services of the International Committee of the
Red Cross to fulfil its functions of protection of
humanitarian standards, including the provision of
assistance and protection to victims of all affected
parties'.
An year later in August 1988, the non governmental
organisation, Human Rights Advocates declared at the UN Sub
Commission on Prevention of Discrimination and Protection of
Minorities:
"... Mr. Chairman, Human Rights Advocates
respectfully urges the Sub-Commission, this session, ….
to call on the Government of Sri Lanka to permit the
International Committee of the Red Cross to fulfil its
functions, including the provision of assistance and
protection to victims of all allegations into all
allegations of extra judicial killings, disappearances,
acts of torture, and unlawful detentions.... "
Five years later,
in February 1992, the Chairman of the UN Human Rights
Commission reiterated the need for "all parties to
respect fully the universally accepted rules of humanitarian
law" - rules which are applicable to armed conflicts.
In 22 August 1990,
17 Non Governmental Organisations declared in a Joint
Statement at the UN Sub Commission on Prevention of
Discrimination and Protection of Minorities:
"In recent months the Sri Lankan government in
pursuance of the armed conflict against the Liberation
Tigers of Tamil Eelam has engaged in aerial bombardments
of the Tamil civilian population and that hundreds of
Tamils have 'disappeared' from those areas within the
control of the Sri Lankan army. The Sri Lankan army is
also engaged in arbitrary killings of Tamil, Sinhalese
and Muslim civilians.... We call upon all parties to
abide by all the rules of humanitarian law governing
armed conflicts, and to allow humanitarian aid
operations by the International Committee of the Red
Cross and other similar organisations."
In the following year in 1991, at the 47th Sessions of UN
Commission on Human Rights, in
February 1991, 22 non governmental organisations in joint
statement said:
"As a group of twenty two Non Governmental
Organisations, we wish to convey to the Commission our
very serious concern regarding the violations of human
rights and fundamental freedoms in Sri Lanka.… In
addition to 3,000 combatant deaths reported by the
Government, local organisation have reported at least
4,000 deaths amongst the unarmed civilian population...
Of particular concern is the relentless and
indiscriminate aerial bombardment of the north."
At the same sessions of the UN Commission on Human
Rights, on 31 January 1991,
the non governmental organisation Liberation declared:
'' '..In March 1987, the Commission called upon "all
parties and groups to the conflict (in Sri Lanka) to
respect fully the universally accepted rules of
humanitarian law" and it "appealed to the Government of
Sri Lanka to intensify its co-operation with the
International Committee of the Red Cross in the fields
of dissemination and promotion of international
humanitarian law.'.. But, four years later, the armed
conflict in Sri Lanka continues to rage with increasing
ferocity and the Sri Lanka authorities continue to act
in breach of international humanitarian law. "
At the UN Commission on Human Rights, in
January 1992, twenty five non governmental organisations
declared:
"…Summary executions and enforced disappearances have
run into tens of thousands, and prolonged detentions
without trial, torture and deaths in custody have become
commonplace. These violations, together with callous
disregard shown for the norms set by international human
rights and humanitarian law in the presently ongoing
armed conflict between government forces and the LTTE,
in our view deserve urgent consideration and action by
this Commission..."
At the same sessions, the Statement of the International
Council of Voluntary Agencies (ICVA) reinforced the
applicability of the humanitarian law of armed conflict to
the situation in the island of Sri Lanka:
''In the North, in predominantly Tamil areas,
civilians have been bombed and shelled. In April 1991,
air raids, long range artillery shelling and helicopter
strafing were launched against Karainagar, Kayts and
Vavuniya, forcing 80,0000 civilians to flee to Jaffna.
In October islands of Jaffna were carpet bombed and
shelled by Chinese built fighter bombers... ICVA
recommends that the Commission... prevail on Sri Lanka
to act in accordance with the humanitarian law of armed
conflict and to desist from arbitrary killings and
aerial bombardment of civilians.''
At the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities in
August 1992, twenty Non Governmental Organisations in a
joint statement declared:
"…The Sub-Commission first adopted a resolution on
Sri Lanka in 1984 following extensive testimony
regarding communal violence against the Tamils. The
Commission on Human Rights has also responded, most
notably in its resolution 1987/61 in which it called
upon the parties to the conflict to comply with
humanitarian norms. .. As a result of this evidence, and
also in response to compelling evidence of widespread
humanitarian law violations, on 27 February 1992 the
Commission read out a statement of "serious concern".
The statement once again called upon all parties "to
respect fully the universally accepted rules of
humanitarian law"... we ask the Sub-Commission to call
on the parties to comply fully with humanitarian law
norms.."
At the UN Commission on Human Rights on
8 February 1993, 15 Non Governmental Organisations declared:
'The armed conflict in the island of Sri Lanka and
the continuing violations of humanitarian law cause us
deep and grave concern. ..During the past several years
the Sinhala dominated Sri Lankan government has
attempted to put down the armed resistance of the Tamil
people and has sought to conquer and control the Tamil
homeland. The record shows that in this attempt, Sri
Lanka's armed forces and para military units have
committed increasingly widespread violations of the
rules of humanitarian law..."
At the same sessions of the UN Commission on Human Rights
in
February 1993, in a joint statement, 24 Non Governmental
Organisations declared:
''Violations of human rights and humanitarian law in
Sri Lanka continue at an alarming degree. We are
particularly concerned because at this time the
government of Sri Lanka is making no effort to resolve
the armed conflict in the North and East in any other
way but militarily... We urge the Commission to adopt a
resolution on Sri Lanka in which it....
..... reminds all parties to the conflict of
obligations to comply fully with all humanitarian laws
of armed conflict, including those set out in the Geneva
Conventions of 1949..."
At the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities in
August 1995, a joint written statement
submitted by 21 non governmental organisations
declared:
"Our organisations are gravely
concerned with the impunity with which the Sri Lanka
armed forces continue to commit gross and inhumane
violations of human rights and humanitarian law. ..We
are constrained to condemn the actions of the Sri Lanka
government as gross violations of human rights and
humanitarian law, intended to terrorise and subjugate
the Tamil people."
Furthermore, on 13 May 1998, the UN Committee on
Economic, Social and Cultural Rights concluded in a
paragraph titled 'The armed conflict between the government
and the LTTE":
"6. The Committee regrets that its dialogue with
representatives of (Sri Lanka) State party regarding the
root causes of the armed conflict has been inconclusive
and that the absence in the report (submitted by Sri
Lanka) can only reinforce the view of the Committee that
the question of discrimination in relation to economic,
social and cultural rights with respect to ethnic
groups, remains the central issue of the armed conflict
in Sri Lanka." (Concluding Observations of the UN
Committee on Economic, Social and Cultural Rights on the
Report submitted by Sri Lanka under
Articles 16 and 17 of the Covenant -
E/C.12/1/Add.24, 13 May 1998)
In all the these premises, it is submitted
that the existence of an armed conflict in the island
(within the meaning of the Geneva Conventions)
is a matter beyond denial.
Is Sri Lanka's resort to arms lawful ?
The further question whether Sri Lanka's resort to arms
is lawful, must now be addressed.
Article 2(4) of the
United Nations Charter states that:
"All Members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other manner inconsistent with the
Purposes of the United Nations."
Article (1) of the Charter sets out the Purposes of the
United Nations and these include:
"To develop friendly relations among nations based on
respect for the principle of equal rights and
self-determination of peoples, and to take
other appropriate measures to strengthen universal
peace"
Again Article 1(1) of the the
International Covenant on Civil and Political Rights
(adopted by the UN General Assembly in 1966) declared:
"All peoples have the right of self-determination. By
virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development."
On the one hand, international law
seeks to protect the territorial integrity of existing
states. At the same time international law
respects the principle of self determination of
peoples.
The
Friendly Relations and Cooperation among States Declaration
1970, in elaborating the the international
law principle of self-determination specified:
"Nothing in the foregoing paragraphs
shall be construed as authorizing or encouraging any
action which would dismember or impair, totally or in
part, the territorial integrity or political unity of
sovereign and independent States
conducting themselves in
compliance with the principle of equal rights and
self-determination of peoples as described above and
thus possessed of a government representing the whole
people belonging to the territory without distinction as
to race, creed or colour."
(Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United
Nations, General Assembly Resolution 2625 (XXV), 24
October 1970, "The principle of equal rights and
self-determination of peoples", para. 7)
This was reaffirmed by the
United Nations World Conference on Human Rights held in
Vienna in 1993:
"In accordance with the Declaration
on Principles of International Law concerning Friendly
Relations and Cooperation Among States in accordance
with the Charter of the United Nations, this [i.e. the
right of self-determination] shall not be construed as
authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and
independent States conducting
themselves in compliance with the principle of equal
rights and self-determination of peoples and thus
possessed of a Government representing the whole people
belonging to the territory
without distinction of any kind."
Here, the critical question is whether Sri Lanka is a
state which has conducted itself "in compliance with the
principle of equal rights and self-determination of peoples"
and was thus possessed of a " a Government representing the
whole people belonging to the territory without distinction
of any kind".
The Gandhian Tamil leader, S.J.V.Chelvanayagam declared in 1975 -
"Throughout the ages the Sinhalese and Tamils in the country lived as
distinct sovereign people till they were brought under foreign domination.
It should be remembered that the Tamils were in the vanguard of the struggle
for independence in the full confidence that they also will regain their
freedom.
We have for the last 25 years made every effort to secure our political
rights on the basis of equality with the Sinhalese in a united Ceylon."
"It is a regrettable fact that successive Sinhalese governments have used
the power that flows from independence
to deny us our fundamental rights and reduce us to the position of a subject
people. These governments have been able to do so only by using against
the Tamils the sovereignty common to the Sinhalese and the Tamils."
"I wish to announce to my people and to the country that I consider the
verdict at this election as a mandate that the
Tamil Eelam nation should exercise the sovereignty already vested in the
Tamil people and become free."
And the statement made on behalf of the Joint Front
of Tamil Liberation Organisations at the
Thimpu Talks in 1985 summarised the reasons that led the
Tamil people to resort to the force of arms to establish an
independent state:
''We are a liberation movement which was compelled to
resort to the force of arms because
all force of reason had failed to convince the
successive Sri Lankan governments in the past. Further
under
conditions of national oppression and the
intensification of state terrorism and genocide
against our people, the demand for a separate state
became the only logical expression of the oppressed
Tamil people. Our armed struggle is the manifestation of
that logical expression.''
Karen Parker of the Non Governmental Human Rights
Organisation International Educational Development
put it succinctly at the 42nd Sessions of the UN Sub
Commission on the Protection of Minorities in August 1990:
'The Universal Declaration of Human Rights states
that all persons, including members of minority groups,
have the right to the full realisation of their human
rights and to an international order in which their
rights can be realised.
The Sri Lanka situation has shown that for the past
forty years, the Sinhala controlled government has been
unwilling and unable to promote and protect the human
rights of the Tamil population, and the Tamil population
has accordingly lost all confidence in any present or
future willingness or ability of the Sinhala majority to
do so. Are people in this situation required to settle
for less than their full rights. Can the international
community impose on a people a forced marriage they no
longer want and in which they can clearly demonstrate
they have been abused? ...We consider that in the case
of Sri Lanka, 40 years is clearly enough for any group
to wait for their human rights."
The rise of the armed resistance
of the Tamil people led today by the Liberation Tigers
of Tamil Eelam constituted the Tamil rebellion against
several decades of alien Sinhala Buddhist rule.
"The systematic violations of
human rights by the Sri Lanka government over a period
of four decades are well documented and are, clearly, no
accidental happenings. They constitute evidence of the
resolute and determined effort of an alien Sinhala
majority to subjugate and assimilate the people of Tamil
Eelam within the framework of a unitary Sinhala Buddhist
Sri Lankan state…."
(Statement
by the non governmental organisation Liberation at UN
Commission on Human Rights,31 January 1991)
"During the past twelve years, the UN Commission on
Human Rights and the Sub Commission have heard hundreds
of statements expressing grave concern at the situation
prevailing in the island of Sri Lanka. The record shows
that it was the oppressive actions of successive Sri
Lanka governments from as early as 1956 and in 1958, and
again in 1961 and again with increasing frequency from
1972 to 1977 and culminating in the genocidal attacks of
1983 that resulted in the rise of the lawful armed
resistance of the Tamil people." (Joint
written statement submitted to the UN Sub-Commission on
Prevention of Discrimination and Protection of
Minorities on 9 August 1995
)
The practise of 'democracy' in Sri Lanka, within the
confines of an unitary state, served to perpetuate the
oppressive rule of the Tamil people by a permanent Sinhala
majority. It was a permanent Sinhala majority, which through
a series of legislative and administrative acts, ranging
from
disenfranchisement, and
standardisation of University admissions, to
discriminatory language and employment policies, and
state sponsored colonisation of the homeland of the Tamil
people, sought to consolidate its hegemony over the
Tamil people.
These legislative and administrative acts were reinforced
from time to time with physical attacks on the Tamil people,
in
1956, in
1958, in
1961 and again in
1977, with intent to terrorise and intimidate them into
submission.
It was a course of conduct which led eventually to
the rise of the Tamil armed resistance movement in the
mid 1970s. The armed resistance of the Tamil people was met
by Sri Lanka with wide ranging retaliatory attacks on
increasingly large sections of the Tamil people with intent,
to 'pacify' and subjugate them.
In the late 1970s large numbers of Tamil youth were
detained without trial and tortured under emergency
regulations and later under the Prevention of Terrorism Act
which was described by the International Commission of
Jurists in 1984 as a
'blot on the statute book of any civilised country'. In
1980 and thereafter, there were random killings of Tamils by
the state security forces and Tamil hostages were taken by
the state when 'suspects' were not found. The
genocidal attacks of 1983, the
indiscriminate bombing and shelling of the Tamil homeland
in the subsequent years,
the economic and food blockade of the Jaffna peninsula
reflected the continuing attempt to terrorise and subjugate
the Tamil people.
Today, the Sri Lanka government has built up a massive
150,000 member armed force constituted almost exclusively of
Sinhalese, and under Sinhala command and has allocated more
than
20% of Sri Lanka's gross national product to that armed
force
so that the
genocidal attack on the Tamil people may continue.
17 non governmental organisations declared at the UN
Commission on Human Rights in February 1994:
"The Tamil population in the North and East of the
island, who have lived from ancient times within
relatively well defined geographical boundaries in the
north and east of the island, share an ancient heritage,
a vibrant culture, and a living language which traces
its origins to more than 2500 years ago.
The 1879 minute of Sir Hugh Cleghorn, the British
Colonial Secretary makes it abundantly clear that:
"Two different nations, from a very ancient period,
have divided between them the possession of the Island:
the Sinhalese inhabiting the interior in its Southern
and western parts from the river Wallouwe to Chilaw, and
the Malabars (Tamils) who possess the Northern and
Eastern Districts. These two nations differ entirely in
their religion, language and manners."
Before the advent of the British in 1833, separate
kingdoms existed for the Tamil areas and for the Sinhala
areas in the island. The Tamil people and the Sinhala
people were brought within the confines of one state for
the first time by the British in 1833. After the
departure of the British in 1948, an alien Sinhala
people speaking a language different to that of the
Tamils and claiming a separate and distinct heritage has
persistently denied the rights and fundamental freedoms
of the Tamil people...
A social group, which shares objective elements such
as a common language and which has acquired a subjective
political consciousness of oneness, by its life within a
relatively well defined territory, and by its struggle
against alien domination, clearly constitutes a 'people'
with the right to self determination and in our view,
the Tamil population of the north-east of the island are
such a 'people'."
The short point is that
Sinhala dominated Sri Lanka seeks to invade and occupy the
Tamil homeland and impose its rule on the people of Tamil
Eelam. The
proven record shows that Sri Lanka is a state
which has not conducted itself "in compliance with the
principle of equal rights and self-determination of
peoples".
Furthermore, the question whether Sri Lanka possesses a Government
representing the whole people belonging to the territory 'without distinction of
any kind' may be also addressed by raising a
simple question:
Q. Why is it that in Sri Lanka, for
five long decades since 1948 (when the British left the
island) , we have always had a Sinhala Buddhist as the
executive head of government ?
The answer is self evident. A Sinhala
Buddhist nation masquerading as a 'multi ethnic Sri Lankan
nation' will always have a Sinhala Buddhist as the executive
head of government. The Government of Sri Lanka represents
the permanent Sinhala majority in the island and it is this
permanent Sinhala majority which has ruled for the past 50
years - and which seeks to continue that rule today with
armed force. Whatever may be the overt constitutional
structures,
the record shows that Sri Lanka does not possess a
Government representing the whole people in the
island 'without distinction of any kind'.
On this view of the matter, the armed resistance of the
Tamil people led by the LTTE and directed to achieve the
self determination of a people is lawful. It
is the Sri Lankan government's use of force to crush the
Tamil struggle for self determination which is a violation
of the United Nations Charter.
Is the conflict an
international armed conflict?
In this context, a further question may
also be usefully considered. If the conflict in the island
is an armed conflict, and is concerned with securing the
right of self determination of a people, is the
conflict an 'internal' armed conflict or is it an
'international' armed conflict within the meaning of the
1949 Geneva Conventions?
Article 1.4 of
Protocol I to the 1949 Geneva Conventions provides that
the situations in which the law relating to international
armed conflicts will apply include:
"…armed conflicts in which people are fighting
against colonial domination and alien occupation and
against racist regimes in the exercise of their right to
self determination, as enshrined in the
Charter of the United Nations and the
Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United
Nations. …"
By expressly including conflicts in which ‘people’ are
fighting against alien occupation, Article 1.4 of Protocol I
made it clear that the Protocol I was not limited simply to
conflict between existing states.
The question here is whether the armed struggle of the
Tamil people may be categorised as a conflict "in which
people are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of
their right to self determination". If it may be so
categorised, then the conflict is an 'international' armed
conflict, otherwise it will remain an internal 'armed
conflict'.
It is submitted that the facts
point to the conclusion that the Tamil people have
resorted to arms to free themselves from alien Sinhala rule
and that, therefore, in law, the conflict in the
island is an international armed conflict. This view
also finds support from Jordon J.Paust, Law
Foundation Professor, University of Houston, Texas:
"It is more appropriate to consider that the armed
conflict (in the island of Sri Lanka) lasting more than
a decade, in which the Tamil people are fighting for
self-determination, has reached beyond an insurgency as
such and implicates Protocol I to the Geneva
Conventions. [See Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (
Protocol I ),
art. 1(4), adopted June 8, 1977, 1125 U.N.T.S. 3,
reprinted in 16 I.L.M. 1391 (1977).... Article I (4)
affirms that Protocol I supplements the general
provisions of the 1949 Geneva Conventions applicable in
case of an armed conflict of an international character,
and that such include: "Armed conflicts in which peoples
are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of
their right of self determination....."] (Jordon
J.Paust, Co Chair, International Criminal Law Interest
Group, American Society of International Law -
Vanderbilt Journal of Transnational Law, Volume 31,
Number 3, p 617 at p 619)
Sri Lanka's claim that Tamil resistance is an
'internal disturbance' and is 'terrorism' denies reason and
ignores international law
Despite the preponderant weight of international law
showing that the conflict in the island of Sri Lanka is an
armed conflict and that furthermore the struggle of the
Tamil people against alien Sinhala occupation is lawful and
just, Sri Lanka continues to claim that Tamil resistance is
an 'internal disturbance', and labels it as 'terrorism'.
What is terrorism? Is it that there are no circumstances under which a
people ruled by an alien people can, in law, resort to arms to secure freedom?
If there are such circumstances what are the circumstances? Do we not
deliberately obfuscate when we conflate the words 'terrorism' and 'violence'?
Here, some questions arise.
If the conflict in the island is simply an 'internal
disturbance', as Sri Lanka claims, what is the
International Red Cross doing in Tamil Eelam?
If it is an internal disturbance, why has the
UN Human Rights Commission, in 1987 and thereafter,
called upon the parties to the conflict to abide by the
humanitarian law of armed conflict? And who are the
parties to the conflict if they are not the Government
of Sri Lanka and the Liberation Tigers of Tamil Eelam?
Again if the conflict is simply an internal
disturbance, why have more than
50 non governmental organisations, during the past 9
years and more, categorised the conflict as an armed
conflict calling for the application of humanitarian
law?
Further, if there was no armed conflict what were the
cease-fire agreements in
1985, in
1989 and again in
1995 about?
Does Sri Lanka deny that the events in the island are
not 'riots, isolated and sporadic acts of violence and
other acts of a similar nature' within the meaning of
Article 1.2 of
Protocol II ?
Does Sri Lanka deny that the LTTE is an organised
armed group, under responsible command, exercising
control over a part of the island of Sri Lanka within
the meaning of
Article 1.1 of
Protocol II?
Does Sri Lanka deny that the
1987 Indo Sri Lanka agreement signed by the
President of Sri Lanka categorised the members of the
Tamil resistance movement as 'combatants'?
Does Sri Lanka deny the
documented record of its oppressive rule?
Does Sri Lanka deny that the armed resistance led by
the LTTE is directed to achieve
the self determination of a people and to free the
Tamil homeland from alien occupation?
Many may take the view that Sri Lanka cannot deny
any of this, without violating both reason and law - reason
and law which found expression in the
Joint Statement by 17 non governmental organisations at the
UN Commission on Human Rights in February 1994:
''... It is our view that the
peaceful and just resolution of the conflict in the
island will not be furthered by a blanket categorisation
of the armed resistance of the Tamil people which arose
in response to decades of oppressive alien Sinhala rule
as 'terrorism'.
It is also our view that there is a need to recognise
that the deep divisions between the Sri Lanka government
and the Tamil people cannot be resolved by the use of
force against Tamil resistance....
It is also our view that the Secretary General should
consider invoking his good offices with the aim of
contributing to the establishment of peace in the island
of Sri Lanka through respect for the existence of the
Tamil homeland in the NorthEast of the island of Sri
Lanka and
recognition for the right of the Tamil people to freely
determine their political status."
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