Briefing Paper on Sri Lanka

Presented to British All Party Parliamentary Group

by Karen Parker, JD, June 14, 2007

BRIEFING PAPER ON SRI LANKA

Presented to

ALL PARTY PARLIAMENTARY GROUP

By Karen Parker, JD [1]

Summary of concerns

1. The labelling of the Liberation Tigers of Tamil Eelam (LTTE) [as a terrorist group] is both legally and factually incorrect. In fact, such labelling flies in the face of existing humanitarian law. The fact that the UK and EU have been persuaded by the US and Sri Lankan governments to “list” the LTTE is a major reason that the peace process broke down and that the Tamil people currently face genocidal policies. The label has also served to demonize the Tamil people in Sri Lanka as well as in the diaspora.

1. While useful to “de-list” for the practical reason that to do so would facilitate negotiation, “de-listing” should occur to bring proper review of the war under applicable humanitarian law norms.

1. Humanitarian aid access to those affected by the armed conflict and the Tsunami must be ensured at once.

Argument

            The war in Sri Lanka is between the government’s armed forces and those of the Liberation Tigers of Tamil Eelam (LTTE). The LTTE are a military force, with an identifiable chain of command and territory under their command. The LTTE combatants are in military uniforms, and carry out military operations on land, at sea and in the air that under international rules are legal military operations. The LTTE is fully entitled to combatant status under humanitarian law.

            The war may be characterized as a civil war or a war of national liberation in defence of the right to self-determination. In my view, the Tamil people have a far greater right to self-determination than the Kosovans – who according to the UK, should be granted independence from Serbia. In the case of the Kosovans, they do not have the 2000- year presence in that area that the Tamils have had in the Tamil areas of the island of Ceylon. Further, the Kosovans have not suffered years of atrocities, massacres, and denial of rights that the Tamil people have suffered since independence from the British.

            Even if, for political or other considerations, governments will not recognize this clear right, these governments must at least recognize that the armed conflict is a civil war. This “civil” war is not directed at overthrowing the GOSL. Rather, this “civil war” is directed at freeing the Tamil areas from Sinhala military occupation. In this sense, the “civil war” is not akin to that in El Salvador or Nicaragua, where the warring parties sought full control of the whole of the territory of the State. Rather, it is akin to the civil war in Pakistan that resulted in the establishment of Bangladesh as a separate State, or that in the former Yugoslavia, that resulted in the establishment of a number of independent States.

            The area under the control of the LTTE is a de jure State. It is de jure because the Tamil people have the right to self-determination, actually occupy part their territory, and in that part of the territory have a civilian government. The government of Sri Lanka has de facto control over those areas of the traditional Tamil area under its control, but does not have the legal right to govern that area, so the de facto control cannot ripen to sovereignty.

            To label the LTTE as a terrorist organization also defies reason and grossly impairs the possibility of a peaceful resolution to the long conflict. It also provides a free ride to the government in regards to humanitarian law, as it shifts analysis of the conduct of the conflict away from humanitarian law and into a “no man’s land” of counter-terrorism operations.

To label the LTTE as a terrorist group defies reason because terrorist groups are not in uniform, do not have the traditional material de guerre, and do not carry out traditional military operations as does the LTTE. “Terrorist” organizations are clandestine, and carry out criminal acts because they are unable to form as military forces.[2]

This is not to say that there is not terrorism IN armed conflict. This is defined in the Geneva Conventions as acts intended to generate terror in the civilian population.  While war itself is “terrorizing”, terrorism in armed conflict is usually limited to acts such as “shock and awe” by the US military in Iraq, the brutal maiming of civilians such as has occurred in certain conflicts in Africa, and purposeful targeting of civilians, forcing them to flee and then blocking off access for humanitarian aid such as is occurring in Sri Lanka by the government forces. In fact, blocking access of food and medicine, such as occurring in Sri Lanka due to the government’s closure of the A9 highway into the Tamil areas, is listed as an element of the crime of extermination under the Statute and Elements of the International Criminal Court. (ICC, Rome Statute, Articles 7(1)(b) and 7(2)(b); ICC, Elements, Article 7(1)(b).

The statement by the Foreign Minister Howells that the UK might reconsider “delisting” the LTTE if the LTTE renounces “violence” is absurd. Such a renunciation would be tantamount to surrender. I note that the Foreign Minister did not urge the Government forces to stop “violence.” This implies that the government of the UK actually sides with the Sinhala to the detriment of the Tamils. A war is, of course, violent, but is not “violence” under criminal law nor is it terrorism.  Further, the Foreign Minister and other officials of the UK have identified certain military operations of the LTTE as “terrorist”, when humanitarian law rules allow such military operations. One example of this is the LTTE attack on the Sri Lanka government’s air base in the South. Such military operations are clearly legal under humanitarian law rules.

            It is a fact that the listing of the LTTE as a terrorist organization by the UK and the EU has severely curtailed international surveillance of the conflict and has emboldened the government of Sri Lanka to carry out military operations, which, as they announce, are to defeat the LTTE in all areas and to ignore the cease fire agreement. From the US perspective, this is positive, as the US wanted to reduce the Sri Lankan Monitoring Mission (SLMM) substantially, leaving only a relatively weak Norway and Iceland rather than the entire Nordic bloc. Delisting, of course, would broaden the purview of the war by third-party States, all of which have an obligation under the Geneva Conventions to “ensure respect for (them) in all circumstances.” The Sinhala/Tamil war is one of those circumstances. Thus delisting would have a practical effect.

However, I think that delisting should be accompanied with a disclaimer asserting that the listing was, in fact, a legal mistake in contravention of humanitarian law. This would reinforce the UK’s  commitment to humanitarian law, and its rejection of the geopolitical interests that have resulted in the total defiance of humanitarian law. Surely the UK does not want to be viewed as furthering the US interests in Sri Lanka, especially when there would be no positive pay-off for the UK. In this regard, the UK could be viewed as aiding and abetting the genocide of Tamils to further US interests in securing “outbases” around the world. As the Diego Garcia situation is tenuous at present, the US has only Sri Lanka, and regrettably the Tamil areas (Trincomalee Harbour and Palaly Air Field) for its “outbases” for the whole sub-Continent area, all the way over to Burma and the Malay peninsula. [3]

The most important outcome of your Parliamentary group is, of course, the “delisting”. This could lead to the second most important outcome, the opening of land routes and access routes for the provision of humanitarian aid to the Tamil areas. As you must be aware, the World Food Programme is retreating from Sri Lanka due to the difficulties and restrictions of their work to provide the Tamil and Muslim populations in the North East with subsistence food. This will leave only the ICRC, which has already left key areas due to restrictions by the Sri Lanka authorities and the assassination of Red Cross workers. There is a major humanitarian catastrophe in store, compounded by the fact that so many Tamils are still displaced from the Tsunami and have been denied any equitable allocation of post-Tsunami aid. Surely you must be aware that the US administration told the American Red Cross that it could not distribute post-Tsunami aid to the Tamil areas, even those under Sinhala control. This is in total violation of the rules of humanitarian relief, and, besides being racist, also is a genocidal act. If your group does nothing else, you should be forthright in the need to open land routes for the provision of humanitarian aid. Besides preventing the starvation of Tamil civilians, this could help generate conditions to reopen the discussions between the parties to the conflict regarding the implementation of the Cease Fire Agreement, which could then lead to discussions about resolving the conflict.

The All Party Parliamentary Group could play a major role in ensuring that this armed conflict is reviewed under humanitarian law and in preventing the genocide of the Tamil people. I will closely follow your work.  

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1. I specialize in humanitarian law and human rights, and received a Diplome, cum laude, from the International Institute of Human Rights (Strasbourg). I have monitored the situation in Sri Lanka since 1983, raising concerns at UN human rights bodies, before the US Congress, at sessions with legislators in Canada, Norway, France, and Australia, and at many forums sponsored by Universities, political parties, trade unions and civil groups.  At the UN I represent International Educational Development, a non-governmental organization on the Roster. I am President of the Association of Humanitarian Lawyers.

2. As I have noted on many occasions, the US use of the term “terrorist” would result that Ethan Allen and the Green Mountain Boys, the “Minute Men,” and, indeed George Washington and the Continental Army would be terrorist organizations, and the Boston Tea Party a terrorist act.  The Universal Declaration grants people the right to resist tyranny and oppression. Any cursory review of the situation in Sri Lanka since independence would show that the Tamil people were severely oppressed, and only after many years of peaceful actions, took up arms. 

3. Note that Russia is now concerned about this, and is seeking to sell offensive military jet aircraft to the government of Sri Lanka, ostensibly to gain some geopolitical advantage to offset the US. So now we have a US/Russian war by proxy in Sri Lanka, with the annihilation of the Tamil people a real possibility.