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Home > International Conferences > International Tamil Eelam Research Conference, U.S.A., 1991 > Human Rights, Humanitarian Law and the Tamil National Struggle: Evolving the Law of Self Determination, Karen Parker, J.D.
|International Tamil Eelam Research Conference,
Sacramento State University, U.S.A.,
21-22 July 1991
Human Rights, Humanitarian Law and the
Tamil National Struggle:
Karen Parker, J.D.
The Universal Declaration of Human Rights' states
These words echo the rallying cries of many of the world's great revolutions that fought against oppressive regimes (monarchies, dictatorships, etc.) and established new forms of government.2 While the new forms of government may have already failed, in whole or in part, or may fail in the future, the "rebels" who succeeded in overturning the old order generally drafted stirring human rights statements enthusiastically accepted by the majority of the people.
The international community, still reeling from the devastation of World War II and at least temporarily intent on condemning tyranny and oppression did the same when in 1948 the United Nations promulgated the Universal Declaration of Human Rights. Its 30 articles cover the range of civil, political, economic, social and cultural rights for all people that have become the standards by which all countries are judged.3 Non-compliance with these standards results in tyranny and oppression.
Unfortunately, the existence of the stirring words of the Universal Declaration of Human Rights does not guarantee that all people will enjoy the enumerated rights. Every country today violates at least some of the rights. And, most tragically, many governments engage in systematic discrimination, torture, disappearances, summary executions, and other gross violations of these rights. Sri Lanka is one of these countries.
While there are international standards for determining at what point government behavior reaches the level of a human rights violation, there are no international standards for determining at what point tyranny and oppression become so severe that rebellion is not only legally justified but widely supported by the rest of the world. For the most part, even when fully aware of serious and systematic human rights violations, the international community still holds to the status quo and continues to recognize the legitimacy of the regime in question.4The support of individual countries for internal resistance to oppression, whether the resistance uses peaceful or forceful means, remains a political not a legal matter. Characterizations of resistance that has escalated into a civil war situation, an impartial issue according to humanitarian (armed conflict) law, also has become largely a political not a legal matter. If one country supports the goals of the rebels, then those rebels are labeled "freedom fighters": if the country does not support the goals of the rebels, the rebels are labeled "terrorists."
The failure of the international community to set common standards and to treat situations in a non-political way has led to unequal treatment of governments that violate and unequal protections for the victims of violations.5 Some countries are rightfully subject to international censure for violations, others with just as serious violations receive only token action or no action at all.
This same failure has stifled the concept of self-determination of peoples in international law, when tyranny and oppression are directed at an ethnic group. Whereas most concepts in international law have evolved naturally due to normal legal and factual developments, the concept of self-determination has remained largely confined to its most narrow meaning: the right of peoples to independence from foreign or colonial domination. It has not accommodated the most pressing issue of the 1980's and 1990's -- what are a people, especially an ethnic group 6, to do when they are subjected to years of gross violations of human rights by the government, when they have exhausted all reasonable peaceful means of redress, and when there is no realistic expectation of improvement without drastic measures. One answer is that the principle of self-determination should be invoked in these circumstances, as a last resort, to protect and defend human rights of ethnic groups.
Using the example of Sri Lanka, this paper will examine the principle of self-determination and its relation to human rights and humanitarian law. It will show that in certain circumstances, exercise of the right to self-determination and its support by the international community may be the only way to ensure those basis rights granted to all people in the Universal Declaration of Human Rights. Failure to respect the right may condemn people to years of violations.
THE TAMIL PEOPLE AND HUNAN RIGHTS VIOLATIONS
In Sri Lanka, the Tamil minority has been subjected to nearly forty years of unequal treatment. Although independence from Britain was largely a pacific affair in 1948, 1949 saw the first anti-Tamil act -- legislation that disenfranchised the estate Tamils and denied them citizenship rights.7 Anti-Tamil actions and Tamil reactions increasingly led to the government carrying out gross and systematic violations of human rights.8 The government became largely Sinhala-dominated and overtly functioned as a government for Sinhala people, not for all residents of Ceylon equally.9
The situation deteriorated dramatically in the late 1970's, leading to the founding of the Tamil United Liberation Front (TULF) and increasing calls for Tamil separatism by large numbers of Tamils. It was during this period that the Tamil community began organizing militant resistance, which since at least 1984, is at a level to automatically invoke humanitarian law and the duties and rights of combatants.10
By 1979, the Sinhala government led by J.R. Jayawardene of the United National Party promulgated the Prevention of Terrorism Act (PTA), which, with the Emergency Regulations, became the instruments for the most egregious oppression of the Tamil community. Since the massacres of Tamils in the 1983 rioting, there has been an unrelenting persecution and oppression of Tamil people in Sri Lanka.11 In 1985, the Working Group of the Swedish Red Cross stated:
This situation has continued to the present time.
THE TAMIL PEOPLE AND ARMED RESISTANCE
Tamil armed resistance meeting the international requirements for an internal armed conflict has been occurring in Sri Lanka since at least 1983, when the Liberation Tigers of Tamil Eelam (LTTE) met the elements of the requirements: military operations, organized command, control over territory, and organizational capacity.12 They also openly carry arms and distinguish themselves from the civilian population, other requirements of combatant forces recognized in international humanitarian law.
The international community has recognized that conditions are met to invoke at least internal armed conflict rules -- the 1987 United Nations Commission on Human Rights resolution on the topic dealt almost exclusively with humanitarian law application to the conflict in Sri Lanka.13
Invocation of the civil war rules does not necessarily mean that the opposition forces such as the LTTE gain international recognition as a government or alternate government. Humanitarian rules are clear that application of civil war rules does not affect the legal status of the parties to the conflict.14 However, the combatants are legally obligated to comply with the rules and are entitled to all the protections in the rules. For this reasons, opposition armed forces are said to have combatant status when humanitarian law is invoked -- they become parties to the conflict.15
FAILURE OF INTERNATIONAL ACTION
The international community has been obligated to address the gross violations of human rights and the existence of an armed conflict meeting at least international standards for an internal armed conflict according to human rights and humanitarian law principles. Nonetheless, except for rigorous condemnation of Tamil rights by non-governmental organizations at the United Nations human rights forums and elsewhere, and by certain rapporteurs and working groups of the United Nations Commission on Human Rights 16, the Tamil cause and situation has received only sporadic attention by governments and the United Nations as a whole.17
While we may never know the total effect of such silence and inattention on the lives and rights of thousands of Tamils, it is clear that the failure of the international community to respond in a consistent, impartial, appropriate and timely fashion has definitely made the situation of the Tamil people much worse. It has also made prospects for a peaceful solution that recognizes the territorial unity of Sri Lanka as well as the rights of the Tamil people wishful thinking -- the Tamil people have regrettably but justifiably lost all confidence that a Sinhala dominated government will ever protect their full rights, and may no longer support any notion of territorial unity.
THE RIGHT TO SELF-DETERMINATION -- THE NARROW VIEW
The right to self-determination, the free determination of a peoples' political status as well as their economic, social and cultural development, is considered by many the cornerstone of human rights.18 It is the first right identified in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the two major international human rights treaties.19
Most authorities agree that the right originally applied to people not in control of their traditional territory due to foreign or colonial occupation and domination.20The dominated people held the right to self-determination as long as the colonial power was present. When the colonial power was removed, whether by force or peacefully, the right to self-determination was extinguished.
The right also recognized that the boundaries established by the colonial power were to be the boundaries of the decolonized state. This was true even if, as in the case of Sri Lanka, the colonial power had artificially created a unitary state from territories traditionally held by different ethnic groups, each governing their territories independently of another group. Once the colonial power left, the right to self-determination would only be applied again if another power seized control of a whole or a part of the territory, such as when Morocco seized Sahara from the Saharan people when the Spanish colonizers left.
Of course, underlying divisions among different ethnic groups artificially forced into a unitary state by the colonial powers and maintained at the time of liberation have led to great strife and separations or attempted separations upon removal of the colonial power. Both Nigeria and Pakistan underwent civil wars based on political-ethnic differences. In the case of Pakistan, there was first the partition from India. Then, East Pakistan was able to sever itself from West Pakistan and became Bangladesh. Statehood was gained not because the Bangladeshis were recognized as having a legal right to self-determination but because they won separation through military means. The Biafran people, the losers in the Nigerian civil war, were never viewed by the international community as having the right to self-determination, but might have established a state that subsequently would have been recognized as such if they had won the war or obtained a political agreement with the Nigerian government. In both these situations, the peoples in question had governed themselves independently prior to British-imposed unitary rule.
The current Tamil national struggle has not been viewed as justified in the exercise of self-determination by the majority of the world's governments. This is because the foreign power, Britain, left in 1948. The one unitary government was considered "indigenous", even though the two major ethnic groups, the Tamils and the Sinhalese, each had separate kingdoms prior to colonial rule, and each group clearly meets the international law definition of "peoples" -- each has its own language, ethnicity21, religion and culture.22 The international community has not accepted the view that the Sinhala-dominated government is a foreign or colonial power over the Tamil nation. Thus, all the arguments about the historic separation of the Tamil people and their full functioning as an independent country prior to colonial rule have fallen on deaf ears.
According to this narrow view of self-determination, under which neither the wide-spread, systematic violations of the human rights of an ethnic group such as the Tamil people nor the existence of an armed conflict at the level of civil war does not automatically invoke the right to self-determination, the international community has no effective remedies for improving Tamil rights absent political pressure -- to date ineffective because of the power of the governments that have protected Sri Lanka diplomatically.
It is obvious that this narrow view of self-determination does not enhance the enjoyment of human rights. On the contrary, this view fosters continued violations -- unacceptable in the over-all scheme of the rule of law and human rights.23
EVOLVING SELF-DETERMINATION: SELF-DETERMINATION AND RACIAL OPPRESSION
One way to evolve the law of self-determination so that it is invoked to protect people in the situation in which the Tamil people find themselves is to develop the application of self-determination to ethnic groups subjected to severe racial discrimination by the ruling government.
The general view is that the right to self-determination is held by peoples, not governments or individuals. The International Court of Justice reinforced this interpretation in its opinion in Western Sahara,24 in which the Court stated "the principle of self-determination [is] a right of peoples."25 The United Nations Special Rapporteur Hector Gros Espiell, in his Report on the Right to Self-Determination, also defined self-determination as a peoples' right:
As has been set out, the concept of "peoples" has caused great difficulties in the international community. For many governments, "peoples" does not mean "minorities"--were that the case, many of the world's post-colonial states would have great difficulty maintaining unitary states. The nations in Africa, for example, would have to be completely redrawn along ethnic lines. Many of these groups, like the Tamils in Ceylon, ruled themselves independently prior to the colonial era. For this reason the international community originally chose to apply self-determination to the territorial boundaries of the colonial-imposed unitary state.
However, wide-spread discrimination of one ethnic group against another in the former colonial territories has not ceased. In one situation, South Africa, the discrimination based on race reached the level of apartheid. In South Africa, the white minority regime both disenfranchised the majority and established a rigid form of racial separation. In dealing with this extreme form of racial discrimination, the international community was obliged to reformulate the rules regarding racial discrimination and recognize a form of self-determination for the non-white peoples. Thus, the international community was obliged to favor the oppressed majority, even when that majority chose the use of force to defend its rights.26
Unfortunately, outside the situation in South Africa, the issue of a people resisting racism from within an existing state has not received much attention, in spite of the fact that in 1970, the United Nations promulgated the Declaration of Equal Rights.27 This declaration recognizes that government may fail to represent all people in its territory under the principles of equal rights. The Declaration discusses the right to self-determination in relation to groups affected by such inequality. This resolution has been curiously ignored, and is more observed in the breach than in the compliance.
There is no reason for the international community to have one standard in dealing with South Africa and another to deal with other countries where the government functions in a racially biased way and does not protect the rights of ethnic groups. Rather, the international community should implement General Assembly resolution 2625 and invoke the principle of self-determination objectively when a government functions in an overtly racist way, especially when the effected groups have struggled for years utilizing all reasonable pacific means to afford redress. There is also no reason for the international community to treat armed resistance to a racist regime differently when the same objective facts of long-time oppression are shown.
Such is the case in Sri Lanka. While the Sri Lankan government has not officially established an apartheid regime, close scrutiny of the patterns of human rights violations clearly illustrate an extreme racial element regarding the Tamils sufficient to be considered apartheid-like.28 As has been shown, oppression of the Tamil community has been on-going in one form or another for forty years. The government appears to be intransigent now and has shown itself intransigent during this forty years in its refusal to respect the full human rights of the Tamil people.
Full development of standards for establishing at what point violations become tyrannical and oppressive may take some time to evolve. But the Sri Lanka, like South Africa, illustrates an extreme that can and must be addressed now. Clearly, no group must wait for more than forty years to enjoy basic human rights.
Accordingly, because of the extreme nature of oppression against the Tamil people over a long period of time with no realistic hope of change, the Tamil people have the right to self-determination.
SELF-DETERMINATION AND ARMED STRUGGLE AGAINST RACIST REGIMES
When the right to self-determination is considered to exist for a group, the international community is obliged to support that group, even to the extent of supporting the group if it engages in armed struggle.29 This is reflected in the 1977 Protocol Additional I to the Geneva Conventions 30, which extends coverage of humanitarian (armed conflict law) norms to "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination."31 Armed conflicts to defend the right to self-determination are commonly called wars of national liberation. Although here again, a strong motivation came from the situation in South Africa, Protocol Additional I addresses the issue of racist regimes in general. The Protocol clearly provides that those fighting against racist regimes are doing so in the exercise of the right to self-determination.32
Prior to the promulgation of the Protocol, Justice Ammoun of the International Court of Justice had recognized the lawfulness of armed struggle to achieve the right to self-determination.33International law expert Ian Brownlie defends a special status for combatants engaged in armed struggle for selfdetermination.34
Because the international community has not applied the provisions of the humanitarian law regarding wars against racist regimes in the exercise of the right to self-determination to any situation but South Africa, the Tamil's armed conflict, led by the LTTE, is treated as a civil war. Under civil war rules, If the Tamil people were able to win full sovereignty because of military victory or political settlement, then, of course, other states might recognize them as a nation and they would have the power to exercise the substance of self-determination. The international community would be justified in maintaining a neutral position regarding the war.35
Yet the international community should now acknowledge the racist nature of the Sri Lankan government and recognize that the Tamil's armed struggle is against racism in the exercise of self-determination. Because of this, the international community cannot remain neutral, but must fully support this struggle and exercise whatever influence can be generated to ensure that the Sri Lanka government ceases military operations and instigates a peaceful process for settlement that meets the just demands of the Tamil people.
The Tamil people have been suffering under tyranny and oppression for forty years. That oppression has included nearly every form of human right violation. The overall pattern of human rights violations shows a strongly racist bias on the part of the Sinhalese-dominated government and whole political system. This pattern of human rights violation over such a long time requires the international community to invoke the right of self-determination in accordance with General Assembly resolution 2625.
At the same time, the existence of armed conflict against a racist regime also takes on the character of a legitimate struggle for self-determination in conformity with the Universal Declaration of Human Rights and the principles set out in humanitarian law. The international community should treat this struggle in a similar fashion to the way the situation in South Africa has been addressed.