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Home> Tamils - a Nation without a State> Struggle for Tamil Eelam > Mahalingam Maha Uthaman
TAMIL EELAM STRUGGLE FOR FREEDOM
Mahalingam Maha Uthaman
29 October 2006
Editorial in First Issue of Journal of Eelam Studies, Spring 1988, Edited by M.Maha Uthaman
One aspect of the deprivation of the Tamil nation is the paucity of intellectual investment made at a local level. Like capital on a global scale, the intellectual resources of the Tamil people too have been drawn towards metropolitian centres, within Sri Lanka and abroad, leaving the peripheral Tamil nation impoverished and void of knowledge.
However, the dialectics of oppression is such that, even as impoverishment is imposed at every level, vigorous resistance and the emergence of self confident patriotic consciousness has been nurtured by the same process. In spite of this heroic response the existence of an intellectual void within the nation has not only been obvious but its effects highly damaging.
In order to plug this gap, it is necessary to establish first and foremost a scholarly-academic tradition from which informed debate can flow. The journal of Eelam Studies is an academic, theoretical, non-sectarian journal which aims to dessiminate knowledge, to provide a forum for discussion and debate and to bring together academics in Eelam and abroad to focus on issues of relevance to the areas where the Tamil speaking people of Sri Lanka live. The name Eelam in the title is not necessarily associated with the political demand for an independent Tamil state. It denotes the concept of the environment and the people who live in the North, East and Central parts of Sri Lanka.
The practical aim of the Journal of Eelam Studies is to create the conditions for the vigorous growth of committed intellectual discipline and the creative application of existing knowledge. An integral part of the project is to stimulate people, to produce work which deals with subjects of concern for the Tamil nation.
There are two models of what it means to produce a publication such as the Journal of Eelam Studies. The first model emphasises theoretical excellence and originality; the second effectiveness in making a practical intervention. The first could dismiss the second as eclectic; the second could criticise the first for being elitist. However, each of the two approaches are indispensable, for effective action is impossible without guidance by sound ideas, and sound ideas alone are useless if not accessible for the process of social transformation. It is therefore necessary to blend the two approaches in working towards the primary objective of the Journal of Eelam Studies which is to facilitate social action through theoretical practice.
The Journal of Eelam Studies will publish materials that use existing knowledge to analyse issues of relevance to Eelam as well as materials, although not of direct relevance to Eelam, are significant in terms of disseminating knowledge regarding methodologies, new schools of thought and development of knowledge per se. Within the above framework, the journal will concentrate on two main areas:
In defining the above areas, the objective is to identify fields for research and not to prevent an inter-disciplinary approach to any particular issue. The scope of the Journal is necessarily wide in order to address and analyse issues that are relevant to the Tamil nation in all its aspects. In this wide ranging project the Journal of Eelam Studies cannot have a political programme of its own. However, in carrying out theoretical and educational work of an academic, non-sectarian nature, and in providing the conditions for different schools of thought to develop, the Journal of Eelam of Studies does in fact have a different yet very important role to play.
In keeping with the aims of the Journal of Eelam Studies, all material published will be selected purely on the basis of scholarly standard and relevance to Eelam, reflecting merely the opinion of the author and not of the Editorial Committee.
Supporting and inspiring those who are committed to the development of the Tamil nation by expanding and cultivating the intellectual terrain for creative growth would he a great achievement. Towards this task the production of the Journal of Eelam Studies is a small step, but in terms of progress from the present arid ground of intellectual barrenness, it represents a giant leap. The success or failure of the Journal of Eelam Studies in the final instance, however, depends on the vigour with which people respond to the challenge of undertaking and contributing work related to Eelam.
In this issue of the Journal of Eelam Studies. Nagarajan explores the Tamil-Sinhala perspectives on the territorial identity of Eelam. Although a territorial basis is not a prerequisite condition for the definition of a nation, even if it were possible to formulate a universal definition of a nation. in the particular case of Eelam - with the historically continuous existence of the Tamil traditional homelands, and the cohesive base that it provides for the Tamil people - territorial issues are of vital concern. The article traces the historical developments in territorial conceptions and boundaries and presents the subject from both Tamil and Sinhala perspectives.
The legal system as an institution, through its integrative mechanisms as well as its ideological functions, is one of the pillars that supports, regulates and maintains modern day societies. In order to understand a social configuration, it is therefore necessary to understand its manifestation at the level of legal structures. Ramani Chelliah outlines one aspect of the Marxist theory of law by discussing the particular contribution of Pashukanis, a Soviet jurist. The article analyses the basis, of law and the function it performs from a Marxist perspective and in doing so addresses the issues of social regulation and transformation. For a society undergoing fundamental upheaval, as in Eelam, such an exercise throws light on not only understanding the present social formation, bur more importantly, on developing perceptions on the nature and requirement of the future social system that is to emerge from the present state of chaos and disruption.
The CARE document reproduced here on the Tamil National Question incorporates the new chapter in the history of Eelam marked by the Indian military intervention of October 1987 and analyses the developments leading to it including the "Peace Accord" of July 1987. It situates current developments within the context of the historical background to the Tamil national struggle for the exercise of the right to self determination. This approach is particularly useful at a time when the destabilising and confusing effects of the dramatic Indian action, both at a subjective and objective level, are still reverberating and the article seeks to re-anchor and re-launch the subject of the Tamil national question within this context.
Maha Uthaman draws attention to the project of a systematic inquiry into the allegations that the war policies pursued by the Sri Lankan government since 1983 and the military actions taken by the Indian government in recent months are a violation of International Law. Drawing on the principles of the 1945 Nuremburg charter and the precedent set by the 1967 International War Crimes Tribunal which tried President Lyndon Johnson for Crimes committed in Vietnam, the author suggests that certain actions taken by the Sri Lankan and Indian governments fall into the categories of crimes against humanity, war crimes and genocide.
International War Crimes Tribunal -
Mahalingam Maha Uthaman, 1988
The blatant discrimination faced by the Tamil speaking people of Sri Lanka in the spheres of employment, education, land allocation, development projects, language, culture and religion have been well documented by domestic as well- as international bodies. Violence perpetrated on Tamils by state organised or state encouraged mobs in 1956, 1958, 1977 and 1983, also have been publicised widely in the international arena. However, there has never been any systematic inquiry carried out on the allegation that the war policies pursued by the Sri Lankan government since 1983 and the atrocities perpetrated by the Indian government since 1987 are violations of International law. Among the war policies that might be found illegal are:
These illegal acts fall into four broad categories of crimes. They are crimes against the peace and wars of aggression, crimes against humanity, war crimes and genocide. There is a growing belief and there is very strong evidence that the Sri Lankan and Indian regimes committed such war crimes and as such those responsible for the policy and its execution should be prosecuted as min. criminals .by appropriate tribunals. Discussions have taken place with eminent international jurists and others of international stature and the formation of an International Tribunal on war crimes in Sri Lanka is already underway. A support committee consisting of Tamils as well as others have been formed.
In order to get the concept of international tribunal on war crimes into correct perspective a brief outline of the historical precedence, legal and moral basis and its political ramification is given below.
Memories of Nuremberg and Tokyo
Before the second world war there had been few international agreements, for instance the Paris Pact of 27 August 1928(popularly known as Briand Kellogg Pact) which were aimed at limiting the Jus ad bellum. There were no other institutions created to implement them.
In 1945, something absolutely new in history appeared at Nuremberg with the first international Tribunal formed to pass Judgement on crimes committed by the Nazi leaders at Germany. Alarmed at the magnitude of Nazi crimes, the decision to set up an International Tribunal was made in early 1940's by Allied powers especially by the leaders of the U.K., the U.S.A. and France. Allied powers decided, since they were to be the victor-, to judge and condemn the wars of aggression and conquest, the maltreatment of prisoners and the tortures, as well as the racist practices known as genocide. At Nuremberg and subsequently, at Tokyo high ranking government party officials were sentenced to death or long imprisonment.
Our concern here is not the procedural outcome of the Nuremberg and Tokyo Tribunals. It is the principles established at Nuremberg that is of direct relevance to the proposed Tribunal on Tamils. They are:
(1) The explicit insistence of the US prosecutor, Robert Jackson, that the principles of Nuremberg are to be regarded as universal in their applicability. After the trials, he wrote:
(2) It is the fundamental duty of the citizen to resist and to restrain the violence of the state. Those who choose to disregard this responsibility can justly be accused of complicity in war crimes, which is itself designated as "a crime under international law" in the principles of the Charter of Nuremberg.
(3) Those who are responsible for "illegal" policy and its execution should be prosecuted as war criminals by appropriate tribunals. The majority judgement of the Tokyo Tribunal held as follows:
(4) Nuremberg statutes defined war crimes: "violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation of civilian population, murder, ill-treatment of prisoners of war or persons on the seas, killing hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity"
(5) (a) Nuremberg statutes defined crimes against humanity: "murder, extermination. enslavement, deportation, and other inhumane acts committed against any civilian before or during the war; or prosecutions on political, racial or religious grounds in execution of or in connexion with any crimes within the Jurisdiction of the Tribunal, whether or not in violation, of the domestic law of the country where perpetrated."
(b) Discussion of crimes against humanity committed outside of a state of war and those which could be committed in the course war was taken up before Nuremberg Tribunal.
(c) Crimes Against 'humanity are characterised by the extent of the affected population and by the motives for those crimes
The other relevant sections of the Nuremberg Charter are being examined by a panel international jurists and will be discussed un detail at the beginning of the International Tribunal on War Crimes in Sri Lanka
While evoking the principles of Nuremberg Tribunal it is imperative to look into the criticisms levelled against it. It is argued that the verdict of Nuremberg and Tokyo was merely the judgement of victors, who sought vengeance and retribution rather than justice. Lord Bertrand Russell in his speech to the first meeting of members of the War Crimes Tribunal held in London on 13th November 1966 mentioned:
Also, Russell felt that it was morally necessary to record the full horror. Another Nobel Laureate Jean-Paul Sartre echoed Russell's criticisms. He said
Questions were raised about the moral right of the Allied powers to set up, Nuremberg and Tokyo Tribunals. These nations which had built their wealth upon the conquest of colonial empires and committed similar crimes against the people of Asia, Australia and Africa passed judgements on Nazi leaders of Germany and the Generals of Japanese Army, unaware that they were condemning themselves, in this way, for their own actions in the colonies.
However, such criticisms do not affect the broader question of the legitimacy of the principles 'that were recognized, in the charter of the Nuremberg war crimes tribunal. Also, the Nuremberg tribunal, in a more universal sense, opened the way to a real jurisdiction for the denunciation and condemnation of war crimes wherever committed, and whoever the culprits. The Nuremberg Tribunal is still the main station of a change of capital importance; the substitution of Jus ad bellum by Jus contra bellum.
The International War Crimes Tribunal 1967
The Nuremburg Tribunal did not consolidate itself into a permanent tribunal, empowered to investigate and to judge all accusations of war crimes. Hardly had the last guilty German been sentenced, the tribunal vanished and no one ever heard of it again.
However, war crimes continued to be committed in Africa and Asia. The decolonization process that began in Africa in 1960s was a painful one for Africans. Belgians in Congo and the French in Algeria committed atrocities that shocked the world and made people aware of the need for a permanent international war crimes tribunal.
Even worse atrocities were being committed by the US in Vietnam. By late 1960s four and a half million tons of bombs had been dropped in Vietnam. This is nine times the tonnage of bombing in the entire Pacific theatre in the second world war, including Hiroshima and Nagasaki - over 70 tons of bombs for every square mile of Vietnam, about 500 lbs of bomb for every man, woman and child in Vietnam. The total of ordnance expended is over 10 million tons when ground and naval attack are taken into consideration. Moreover, news about atrocities committed in Song My, forced expulsion of people, chemical and other experimental war fare carried out by the Americans started pouring into the west. Yet a deadly silence was maintained by the world.
Lord Bertrand Russell and Jean-Paul Sartre decided to break this crime of silence. Both were well known not only for their long opposition to wars but also for their extraordinary contribution to the theory of knowledge. They had the commitment and the necessary international stature to fill the void left by the absence of a permanent International Tribunal on war crimes.
In 1967, the International War Crimes Tribunal was formed with Bertrand Russell as its Honorary President and Jean-Paul Sartre as executive president. The first tribunal was to seek answers and to make pronouncements on the following questions -
Since the Government of the United Kingdom and France refused to allow the Tribunal to be held in their territories, the first session was held in Stockholm, Sweden from 2 to 10 May, 1967 and the second session was held in Roskilde, Denmark from 20 November to 1 December 1967.
Members of the Tribunal included such eminent persons as Vladimir Dedijer who acted as the Chairman and President of sessions, Wolfgang Abendroth (Professor of Political Science, Marburg University) Gunther Anders (Philosopher), James Baldwin (Novelist and essayist) Lelio Basso (Professor, Rome University and member of the Italian Commission of Foreign Affairs), Simone de Beauvoir (philosopher), Loizaro Cardenas (Former President of Mexico), Isaac Deutcher (Historian), Amado Hernandez (Poet Laureate of the Philippines), Shach Sabata (Professor of Physics), Laurent Schwartz (Professor of Mathematics, Paris University) etc..
Reporters and witnesses included Leon Matarasso (Member of French legal panel at Nuremberg), Gabriel Kolko (Professor of History, University of Pennsylvania), Jean-Pierre Vigier (Physicist, Director of Research at CNAS), Malcolm Caldwell (Lecturer, University of London), Martin Birnstingl (Consultant Surgeon,, St Bartholomew's hospital, London), Henrick Forss (Director of Medicine, Finnish Institute for Hygiene), John Takman (Director, Child Welfare Board, Stockholm), Alex Hojer (Swedish delegate to UN World Health Organisation), Fujio Yamazadi (Professor of Agriculture, Tokyo University), Edgar Lederer (Professor of Science, Paris-Orsay), Charles Fourniau (Historian) etc..
The deliberations of the two sessions which lasted for twenty days heard evidence and reports on the scale and extent of war crimes committed by the United States in Vietnam. Lyndon. B. Johnson, then President of the United States, was invited to defend himself against the charges levelled against the US government, but he declined to appear before the Tribunal.
The verdict of the first session of the Tribunal rendered the US government guilty of war crimes and committing crimes against humanity. The Tribunal found the US government guilty of committing acts of aggression against Vietnam under the terms of international law and acts of deliberate, systematic and large-scale bombardment of civilian targets, including civilian populations, dwellings, villages, dams, dikes, churches, schools. pagoda's, historical and cultural monuments. The second session found the US government guilty of experimenting with weapons prohibited by the laws of war. subjecting prisoners to treatment prohibited by the laws of war, subjecting the civilian population to inhuman treatment prohibited by international law and above all the tribunal found the US government guilty of genocide against the people of Vietnam.
Although, the Tribunal lacked force majeure to implement the procedures of the trial, it carried out a solemn and historic investigation, uncompelled by reasons of state or other such obligations. The impact of the Tribunal had a far reaching effect all over the world and provided the moral basis for the indignation expressed by the masses of the world that caused the defeat of the US on the second front.
If the Nuremberg Tribunal created a precedent, the embryo of a tradition, the International War Crimes Tribunal in 1967 took it to a logical end. It opened the way for the creation of a Permanent International Tribunal on War Crimes.
Human Rights: Positive International Law and Conventions
Historical Evolution of the Concept
The concept of human rights was embedded in the liberal English tradition for over eight centuries. The first text which must be cited is the Magna Carta imposed on King John in 1215 by the barons in revolt against him. The list of English texts continues with the Petition of Rights (1627), the Acts of Habeas Corpus (1679) - effectively protecting subjects against arbitrary detention - the Bill of Rights (1689), and the Act of Establishment (1701).
Then there were the American documents, inspired by 18th century philosophy ie the Declaration of Independence (1776) and the amended federal constitution of the U.S.A. However, the first complete body of legal principles in the sphere of civil rights was the French Declaration of the Rights of Man and Citizen, of 26 August 1789, which figured at the head of the French Constitution of 1791. Numerous constitutions of other nations were inspired by the French Declaration and often even reproduced.
While the concept of the 1789 constitution was spreading through the world, the progress of Marxist ideas had an important role in broadening the concept of human rights. Marxists argued that the man designated in the 1789 French Declaration was only an abstraction. Concrete principles could not be proclaimed in the name of this abstract man. In fact, man must be envisaged historically, and principles of law can only relate to men according to as they compose a given society. Principles of law are only a reflection of this society, and laws come to be passed in the interests of the social class in power.
The constitutions of the USSR and the People's Republic of China thus are characterised not only by the will to give a concrete context to formal freedoms but also by the recognition of rights to economic provisions -in addition to the classic freedoms of earlier national constitutions. It must be admitted that under the influence of socialist ideas, the constitutions of capitalist nations have been amended to recognise, along with classic freedoms, certain forms of economic and social freedoms. The content of human rights has thus been enlarged.
The 1948 Universal Declaration of Human Rights
Reaction to the Second World War, by reason of the acts of methodical barbarity and of the unprecedented massacres on non-combatants perpetrated under. Hitler, took on the character of a veritable crusade for human rights. After the restoration of peace came the signing in San Francisco, April 1945, of the Charter of the United Nations Organization. This Charter established among the essential goals of the UN "respect for human rights and for the basic freedoms for all, without distinction as to race, language or religion"
In January 1947 the UN Human Rights Commission was established and the draft of the International declaration prepared by it was adopted by the United Nations plenary Assembly on 10 December 1948. This was the famous text of the Universal Declaration of Human Rights.
We must now briefly examine the content of human rights. According to Prof.Cassin, who drafted the Universal Declaration of Human Rights, public freedoms are classified into four categories:
What concerns the content of the body of the declaration, according to Prof. Cassin, is as follows:
Articles 1 and 2 treat of general principles.
Articles 3 to 11 treat of human rights of the personal order.
Articles 12 to 17 treat of the rights of the individual in his family and territorial relationships, and with the exterior world.
Articles 18 to 21 treat of intellectual freedoms and basic political rights
Articles 22 to 27 treat of economic, social and cultural rights. Finally, articles 28 to 30 demarcate the lines between the individual and the national and international communities within which these freedoms are exercised.
Article 1 takes up the notions of freedom, equality and fraternity proclaimed in 1789;
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience, should act towards one another in a spirit of brotherhood.
Article II recalls that all the rights and freedoms proclaimed in the Declaration apply to all persons "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". The same Article stipulates that political or juridical status of the territory from which a person comes is of no influence on the rights of that person to the basic freedoms incorporated in the Declaration.
Besides the 1948 Universal Declaration of Human rights there exists other international documents and proceedings related to human rights and war crimes.
1949 Convention on Genocide
Genocide, as it is denounced by the international convention of 9 December 1948, consists of the destruction or the persecution of human groups conceived of as national, ethnic, racial or religious entities.
The crime of genocide can be committed by the following acts: murder of members of the group, serious attack on the physical or mental integrity of members of the group, international submission of the group to conditions of existence which, by their very nature, will lead to its partial or total physical destruction, measures designed to prevent births within the group, forced transference of children from the group to another group.
International Covenants on Civil and Political Rights, 1966
According to Article I of the International Covenant on Civil and Political Rights, 1966, all peoples have the right of selfdetermination. By virture of that right, they freely determine their political status and freely pursue their economic social and cultural development
Article II makes it obligatory for each state party to the covenant to ensure to all individuals within its territory and subject to its Jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, social origin, property birth or other status.
Articles 6,7,8,9,10,12,14,17,18,26 and 27 are relevant to the proposed tribunal, especially Article 27 which states: "In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group. to enjoy their own culture, to profess and practise their own religion, or to use their own language".
International Convention on the Elimination of All Forms of Racial Discrimination 1966
In this convention, the term racial discrimination means: any distinction, exclusion, restriction or preference based on race. colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Article 2 requires States to condemn racial discrimination and to undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.
The principles emanating from the UN General Assembly Resolution 1803 of 1962, Declaration on the Granting of Independence of Colonial Countries and Peoples, 1960, American Convention on Human Rights, 1969, Helsinki Final Act 1975, Geneva Protocol of 1925, Geneva Conventions of 1949, and many other charters and conventions are applicable to the proposed tribunal.
Discussion will immediately arise as to the right of individuals to set themselves up as Judges. The discussion will be made all the more lively by the fact that the proposed tribunal is to give itself the name "International War Crimes Tribunal". The constituent declaration of the first international War crimes Tribunal replied:
In the introductory discourse at the first session in Stockholm in 1967 Jean-Paul Sartre said in this regard:
The legitimacy of an International Tribunal was established beyond doubt subsequent to the first International War crimes Tribunal. Numerous legal texts written after 1967, including the now famous treatise on International Criminal Law by Prof. Claude Lombois, proved that state power cannot halt the advance of new Juridical principles. Dialectically speaking, if the Tribunals convened in Nuremberg and Tokyo legitimized the principles of international trials of war criminals, the international tribunal held in 1967 overcame the weaknesses of the earlier tribunals and created new historical precedents. The ligitimacy of Nuremberg and Tokyo tribunals could be challenged precisely because of their official status and because the principles they applied were the law of the victorious. A posteriori legitimation of the International War Crimes Tribunal of 1967 was established precisely, for opposite reasons.
Even if one wished to discard the historical precedents and focus on the existing legal principles, one may find innumerable references to the effect of public conscience on the development of law.
Moreover, it may be said that the United Nations itself was founded on the appeal to the conscience of peoples. In the preamble to its Charter we read that the peoples of the United Nations had "resolved to reaffirm their faith in the fundamental rights of man, in the dignity and value of the human person. in equality of rights of men and women and of large and small nations". The statement that it is 'the peoples' of the United Nations who have proclaimed "their faith in the fundamental rights of man" is taken up again in the 1948 Charter of Human Rights.
Article 38 of the Statutes of the International Court of Justice takes the same line. It states "Principles accepted law the International community are truly and properly Juridical norms, independent of the existence or non-existence of an international or national organ which may have formulated them.
The historical precedents especially the principles emanating from Nuremberg Charter and the International Tribunal on War Crimes in Vietnam, positive international Law and conventions and above all the moral authority derived from public conscience would provide a sound basis for the creation of an International Tribunal on War Crimes in Sri Lanka. However, its legitimacy will be a posteriori legitimacy. It will depend on how seriously it does its work on the principles of right, its affirmation of the law, the proofs it will adduce, the conclusions that it reaches and especially the support that it receives from public opinion.