Armed Resistance & the Law - a Tamil Eelam Case Study
Armed Resistance & the Law – A Tamil Eelam Case Study
Nadesan Satyendra, 10 May 1998, 2009
Introduction - Relevance of legal status - Legal status of the Tamil armed resistance falls to be considered at two levels: (i) is the conflict an armed conflict ? and (ii) is the resort to arms lawful? - Was the conflict in the island an 'armed conflict' or simply an 'internal disturbance'? - Armed conflict recognised by governments - Armed conflict recognised by UN Commission on Human Rights and non governmental organisations - Was Sri Lanka's resort to arms lawful? - Was the conflict an international armed conflict? - Sri Lanka's claim that Tamil resistance was an 'internal disturbance' and was 'terrorism' denied reason and ignored international law - In the end, a need to go beyond law and address the more fundamental questions of morality and humanity
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.
These military devices, leading to victory, must not be divulged beforehand.
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.
Relevance of Legal Status
Be that all as it may, 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 on the Sri Lanka – Tamil Eelam Conflict 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 geo political and strategic considerations.
Said that, there is also 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 otherwise accord.
The views expressed by International Alert reporter, 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' also 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.
Was 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.
Was Sri Lanka's resort to arms lawful ?
The further question whether Sri Lanka's resort to arms was 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 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 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 " Government representing the whole people belonging to the territory without distinction of any kind".
The Gandhian Tamil Eelam leader, S.J.V.Chelvanayagam Q.C. 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 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 and Tamil resistance subdued.
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, it is submitted that 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.
Was 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."
Need to go beyond law and address the more fundamental questions of morality and humanity
Said all this, in the end on 17 May 2009, the Liberation Tigers of Tamil Eelam silenced their guns as a last attempt to save the Tamil people from the genocidal onslaught launched by the Sinhala Sri Lanka regime.
"... The LTTE had for almost three decades fought the Sri Lankan military and defended its right to carry arms as a means of protecting the Tamil people living in the island. Since the war intensified in 2007, several thousand Tamil civilians have died. The recent thrust by the military into the Northern strong holds of the Tamils have seen an escalation in the deaths and has resulted in untold misery with people succumbing to starvation and lack of medical supplies....We need to do everything within our means to stop this carnage."...We are silencing our guns - LTTE, 17 May 2009
The political reality was that international law failed to protect the people of Tamil Eelam against the genocidal onslaught launched by Sri Lanka - an attack launched to subdue and conquer the people of Tamil Eelam and deny them their right to self determination. Dr.Colin Harvey was right when he said in 2000 –
"International law is political. There is no escape from contestation… We must abandon the myth that with law we enter the secure, stable and determinate. In reality we are simply engaged in another discursive political practice about how we should live." - Dr Colin J Harvey, Assistant Director, Human Rights Centre. School of Law, Queen's University of Belfast, Ethnic Conflict Research Digest Volume 3, Number 2, September 2000
International law is political. Amnesty said it in 1994 -
''When governments pretend not to notice suffering, to whom can peoples turn for help? The United Nations? Alas, the deeper you delve, the redder the faces. The cynicism of realpolitik extends even to the UN Commission on Human Rights..." Amnesty International Advertisement, 12 March 1994
And Velupillai Pirabakaran, the leader of the Liberation Tigers of Tamil Eelam said it in 1993 –
"We are fully aware that the world is not rotating on the axis of human justice. Every country in this world advances its own interests. It is the economic and trade interests that determine the order of the present world, not the moral law of justice nor the rights of people. International relations and diplomacy between countries are determined by such interests. Therefore we cannot expect an immediate recognition of the moral legitimacy of our cause by the international community." - Maha Veera Naal Address - November 1993
An armed resistance movement takes shape in the womb of oppression. Its seeds are to be found in the eternal quest for equality and freedom. But, though born of natural parents it is at birth illegitimate - because it breaches the existing legal frame, and seeks to supplant it. And that simple fact has much to do with its subsequent development and growth. An armed resistance movement acquires legitimacy and becomes 'lawful' through its growth and success - not simply because the ends it seeks to achieve are just. The metamorphosis from 'unlawful' to 'lawful' is gradual (and many layered) and is related not only to the justice of the ends it seeks to achieve and the justice of the means it employs but also to the extent to which a guerrilla movement is able to secure and maintain permanent control of territory. It is not a case of one or the other, but a case of all three.
Here, the words of Harry L. Stimson, US Secretary of State 1929-1933 quoted, appropriately enough by Hitler's Arms Minister, Albert Speer in Inside the Third Reich merit attention:
"...We must never forget, that under modern conditions of life, science and technology, all war has become greatly brutalized and that no one who joins in it, even in self-defence, can escape becoming also in a measure brutalized. Modern war cannot be limited in its destructive method and the inevitable debasement of all participants... we as well as our enemies have contributed to the proof that the central moral problem is war and not its methods..."
And so do the words of the fictional Prince Andrew Bolkhonsky in Tolstoy's War & Peace (Book 10, Chapter 25, pp 486-7)
".. we play at magnanimity and all that stuff. Such magnanimity and sensibility are like the magnanimity and sensibilities of a lady who faints when she sees a calf being killed; she is so kind-hearted that she can't look at blood, but enjoys eating the calf served up with sauce. They talk to us of the rules of war, of chivalry, of flags of truce, of mercy to the unfortunate and so on. It's all rubbish. I saw chivalry and flags of truce in 1805. They humbugged us and we humbugged them. They plunder other peoples' houses, issue false paper money, and worst of all they kill my children and my father, and then talk of rules of war and magnanimity to foes ! Take no prisoners but kill and be killed ! . . . If there was none of this magnanimity in war, we should go to war only when it was worth while going to certain death, as now.... war is not courtesy but the most horrible thing in life; and we ought to understand that, and not play at war.... The air of war is murder; the methods of war are spying, treachery, and their encouragement, the ruin of a country's inhabitants, robbing them or stealing to provision the army, and fraud and falsehood termed military craft...."
In the end, we may want to pay renewed attention to Sri Aurobindo's words (in April 1916) on the Passing of War –
"The progress of humanity proceeds by a series of imaginations... Human imaginations are often fulfilled to the letter; our illusions on the contrary find the truth behind them realised most unexpectedly, at a time, in ways, under circumstances far other than those we had fixed for them... Man's illusions are of all sorts and kinds, some of them petty though not unimportant for nothing in the world is unimportant others vast and grandiose. The greatest of them all are those which cluster round the hope of a perfected society, a perfected race, a terrestrial millennium... One of the illusions incidental to this great hope is the expectation of the passing of war. This grand event in human progress is always being confidently expected, and since we are now all scientific minds and rational beings, we no longer expect it by a divine intervention, but assign sound physical and economic reasons for the faith that is in us. .. (But) Only when man has developed not merely a fellow feeling with all men, but a dominant sense of unity and commonalty, only when he is aware of them not merely as brothers that is a fragile bond but as parts of himself, only when he has learned to live, not in his separate personal and communal ego-sense, but in a large universal consciousness, can the phenomenon of war, with whatever weapons, pass out of his life without the possibility of return. Meanwhile that he should struggle even by illusions towards that end, is an excellent sign; for it shows that the truth behind the illusion is pressing towards the hour when it may become manifest as reality."