Tamil Armed Resistance & the Law
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
In the years following that Declaration, many a people have been compelled to rebel
against tyranny and oppression and armed conflicts have proliferated throughout the world.
And, it appears that the art of war has not changed much from the times of Sun Tzu who declared more than a thousand years ago:
- All warfare is based on deception.
- Hence, when able to attack, we must seem unable; when using our forces, we must seem
inactive; when we are near, we must make the enemy believe we are far away; when far away,
we must make him believe we are near.
- Hold out baits to entice the enemy. Feign disorder, and crush him.
- If he is secure at all points, be prepared for him.
- If he is in superior strength, evade him.
- If your opponent is of choleric temper, seek to irritate him.
- Pretend to be weak, that he may grow arrogant.
- If he is taking his ease, give him no rest.If his forces are united, separate them.
- Attack him where he is unprepared, appear where you are not expected.
- These military devices, leading to victory, must not be divulged beforehand.
- Now the general who wins a battle makes many calculations in his temple ere the battle
- 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.
However, in the end, the success of a
alien rule, will be measured by the extent that it secures international
recognition. The matter was put somewhat more circumspectly at the
Bergen Conference in 1996:
" In all civil war situations, the government starts with a major advantage in
that it has the formal and, at least, initial monopoly on international recognition. In
order to challenge the government, a rebel movement must close some of the gap in status
and international access."
The question arises: on what is a government's 'formal and, at least,
monopoly on international recognition' based? It will be idle to pretend that international recognition will not be determined
by political and strategic considerations. At the same time, it is not a simple matter of
might being always right.
There is a need for political leaders to act (or at least be seen to act) in accordance
with international law. The rule of law is the proclaimed goal of all political
leaders - without exception. In this way, they seek to gain broad based support for their
actions, both within their own countries and outside. Democracy needs to nurture its
liberal foundation, if it is to succeed in its advocacy of evolutionary (as opposed to
revolutionary) change. And it is here, that the legal status of an armed struggle
assumes a particular significance.
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
Algeria and Vietnam in his 1973 German-language book 'Die Revolutionierung des
'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,
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 -
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
The views expressed by
Eduardo Marino in 1987
remain valid even today:
"In characterising the Tamil guerrilla, if terrorists are to be
called those who have had recourse to terrorist acts, then everyone who has done so should
be called a terrorist. It is simply a dishonesty to confine the use of
the term - as some newspapers and politicians mainly in Colombo do - to Tamil guerrillas,
while remaining silent regarding dozens of officers and hundreds of soldiers and policemen
from the Sinhalese community whose acts, over the years,
been well documented."
It appears that the dishonesty of 'some newspapers and politicians
mainly in Colombo' has now spread to sections of the international community as well.
It is therefore
not without importance that the
legal status of the Tamil armed struggle should be examined in a fair and open way,
stripped of propagandist rhetoric.
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.
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
The Geneva Conventions and the humanitarian law of armed conflict regulate
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
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
are armed conflicts covered by
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
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
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,
cease-fire and sponsored talks at
Thimpu in Bhutan between the Tamil combatants and a specially
appointed Minister of the government of Sri Lanka.
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
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,
violations of the humanitarian law in internal conflict in respect of the situation in
And in February 2002, the international community recognised the Norwegian
Ceasefire Agreement which provided for demarcated lines of control for Sri
Lanka and the LTTE.
of armed conflict recognised by United Nations Commission on Human Rights and by non
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.
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
"... Mr. Chairman, Human Rights Advocates respectfully urges the Sub-Commission,
. 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
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
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
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
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
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
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
16 and 17 of the Covenant - E/C.12/1/Add.24, 13 May 1998)
In all the these premises, it is submitted that the existence
of an armed conflict in the island (within the meaning of the Geneva
Conventions) is a matter beyond denial.
Is Sri Lanka's resort to arms
The further question whether Sri Lanka's resort to arms is lawful, must now be
Article 2(4) of the
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,
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
"To develop friendly relations among nations based on respect for the principle of
equal rights and
self-determination of peoples, and to take
other appropriate measures to strengthen universal peace"
Again Article 1(1) of the the
Covenant on Civil and Political Rights (adopted by the UN General Assembly in 1966)
"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
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.
Friendly Relations and Cooperation among States Declaration 1970,
in elaborating the the international law principle of self-determination specified:
"Nothing in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a government
representing the whole people belonging to the territory without distinction as to race,
creed or colour." (Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations, General Assembly Resolution 2625 (XXV), 24 October 1970, "The
principle of equal rights and self-determination of peoples", para. 7)
This was reaffirmed by the
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
distinction of any kind."
Here, the critical question is whether Sri Lanka is a state which has conducted itself
"in compliance with the principle of equal rights and self-determination of
peoples" and was thus possessed of a " a Government representing the whole
people belonging to the territory without distinction of any kind".
The Gandhian Tamil leader, S.J.V.Chelvanayagam declared in 1975 -
"Throughout the ages the Sinhalese and Tamils in the country lived as distinct
sovereign people till they were brought under foreign domination. It should be remembered
that the Tamils were in the vanguard of the struggle for independence in the full
confidence that they also will regain their freedom.
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
"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
all force of reason had failed to convince the
successive Sri Lankan governments in the past. Further under
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
Karen Parker of the Non Governmental Human Rights Organisation International
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
Tamil people led today by the Liberation Tigers of Tamil Eelam constituted the Tamil
rebellion against several decades of alien Sinhala Buddhist rule.
"The systematic violations of human rights by the Sri Lanka
government over a period of four decades are well documented and are, clearly, no
accidental happenings. They constitute evidence of the resolute and determined effort of
an alien Sinhala majority to subjugate and assimilate the people of Tamil Eelam within the
framework of a unitary Sinhala Buddhist Sri Lankan state
(Statement by the non governmental organisation
Liberation at UN Commission on Human Rights,31 January 1991)
"During the past twelve years, the UN Commission on Human Rights and the Sub
Commission have heard hundreds of statements expressing grave concern at the situation
prevailing in the island of Sri Lanka. The record shows that it was the oppressive actions
of successive Sri Lanka governments from as early as 1956 and in 1958, and again in 1961
and again with increasing frequency from 1972 to 1977 and culminating in the genocidal
attacks of 1983 that resulted in the rise of the lawful armed resistance of the Tamil
people." (Joint written statement submitted
to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities on 9
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
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
again in 1977, with intent to terrorise and
intimidate them into submission.
It was a course of conduct which led eventually to
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
In the late 1970s large numbers of Tamil youth were
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
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
that the genocidal attack on the Tamil people may continue.
17 non governmental organisations declared at
the UN Commission on Human Rights in February 1994:
"The Tamil population in the North and East of the island, who have lived from
ancient times within relatively well defined geographical boundaries in the north and east
of the island, share an ancient heritage, a vibrant culture, and a living language which
traces its origins to more than 2500 years ago.
The 1879 minute of Sir Hugh Cleghorn, the British Colonial Secretary makes it
abundantly clear that:
"Two different nations, from a very ancient period, have divided between them the
possession of the Island: the Sinhalese inhabiting the interior in its Southern and
western parts from the river Wallouwe to Chilaw, and the Malabars (Tamils) who possess the
Northern and Eastern Districts. These two nations differ entirely in their religion,
language and manners."
Before the advent of the British in 1833, separate kingdoms existed for the Tamil areas
and for the Sinhala areas in the island. The Tamil people and the Sinhala people were
brought within the confines of one state for the first time by the British in 1833. After
the departure of the British in 1948, an alien Sinhala people speaking a language
different to that of the Tamils and claiming a separate and distinct heritage has
persistently denied the rights and fundamental freedoms of the Tamil people...
A social group, which shares objective elements such as a common language and which has
acquired a subjective political consciousness of oneness, by its life within a relatively
well defined territory, and by its struggle against alien domination, clearly constitutes
a 'people' with the right to self determination and in our view, the Tamil population of
the north-east of the island are such a 'people'."
The short point is that Sinhala dominated Sri Lanka seeks
to invade and occupy the Tamil homeland and impose its rule on the people of Tamil Eelam.
The proven record shows that Sri Lanka is a state which
has not conducted itself "in compliance with the principle of equal rights
and self-determination of peoples".
Furthermore, the question whether Sri Lanka
possesses a Government representing the whole people belonging to the territory
distinction of any kind' may be also addressed by raising a
Q. Why is it that in Sri Lanka, for five long decades since 1948 (when
the British left the island) , we have always had a Sinhala Buddhist as the executive head
of government ?
The answer is self evident. A Sinhala Buddhist nation masquerading as a
'multi ethnic Sri Lankan nation' will always have a Sinhala Buddhist as the
executive head of government. The Government of Sri Lanka represents the permanent Sinhala
majority in the island and it is this permanent Sinhala majority which has ruled for the
past 50 years - and which seeks to continue that rule today with armed force. Whatever may
be the overt constitutional structures, the record shows that Sri Lanka does not possess a
Government representing the whole people in the island 'without
distinction of any kind'.
On this view of the matter, the armed resistance of the Tamil people led by the LTTE
and directed to achieve the
self determination of a people
is lawful. It is the Sri Lankan government's use of force to crush the Tamil
struggle for self determination which is a violation of the United Nations Charter.
Is the conflict an international armed conflict?
In this context, a further question may also be usefully considered. If
the conflict in the island is an armed conflict, and is concerned with securing the right
of self determination of a people, is the conflict an 'internal' armed conflict or
is it an 'international' armed conflict within the meaning of the 1949 Geneva Conventions?
Article 1.4 of
Protocol I to the 1949 Geneva
Conventions provides that the situations in which the law relating to international
armed conflicts will apply include:
armed conflicts in which people are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right to self
determination, as enshrined in the
Charter of the United Nations and the
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,
"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
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
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
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
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
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."
Having said all this, in the end, there may be a need to go beyond reason and law and
address the more fundamental
morality and humanity. 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 our careful 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
And so do the words of the fictional Prince Andrew Bolkhonsky in
& 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.... "