Professor Boyle
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Thank you and I’m very happy to be with you here this evening on the verge of these critical negotiations between the Liberation Tigers of Tamil Elam and the government of Sri Lanka, which are now scheduled to be open in Thailand in August, under the auspices of the Norwegian government which is serving as the facilitator for the negotiations. In the brief time that has been allotted to me here this evening, I’m not going to go through the 18 year history of this terrible struggle that has been inflicted on the Tamil people. I know you are all, all too familiar with it, but, I did want to make a few basic points for everyone to keep in mind as the Tamil Tigers go into these negotiations, then our sole pri__able for the history of the Tamil people in Sri Lanka and Tamils all over the world. First, we must understand that the Tamils in Sri Lanka have been the victims of genocide, Genocide as defined by the 1948 Convention on the Prevention of Genocide and I say that as the first person to have ever won anything from the International Court of Justice in the Hague on the basis of the Genocide Convention and let me quote here from the relevant provision of the convention: “Genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethnical, racial or religious group, as such.” Notice its intent to destroy in whole or in part. As we know 65,000 people have been killed, predominant majority of whom are Tamils and certainly that qualifies as in part. It’s not necessary for the Sinhala government to want to kill all Tamils. National and ethnical. Clearly both sides are in agreement, this is an ethnical war and the Tamils are certainly covered as such under the Genocide Convention. Killing members of the group – that’s very clear. Causing serious bodily or mental harm to members of the group. The widespread murder, disappearances, torture and rape of the Tamil people by the Sinhala government has been documented by most of the major human rights organizations in the world. C. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. That has clearly been the policy of the Sinhala government against the Tami people. Destroying their national heritage, their culture, their symbols, their libraries, their churches, their temples. Inflicting on the Tamil people a genocidal economic embargo, not only in violation of the laws and the customs of warfare, but also in violation of this provision of the Genocide Convention. If I had this case, I personally believe that I will be able to argue and win a case for genocide against the Sinhala government on behalf of the Tamils, just as I have done with Bosnians against Yugoslavia. Now the fact that genocide has occurred here is very important for these negotiations. When a conflict gets reduced to a point where a government attempts to inflict genocide on another race or people, it requires special remedies and special protections in the event that ultimately there are going to be good faith peace negotiations on the part of the government. I have reviewed the record of the so called negotiations the last time it was clear that under Mrs. Kumaratunga there were no really good faith negotiations to begin with, an exchange of letters, a refusal even to agree to a formal cease fire. But now it appears with the new government, new party, there could be good faith negotiations. I certainly don’t wish to get anyone’s hopes up one-way or the other. But at least this time the government has agreed to a cease fire in February; very detailed, very good, well negotiated with monitors. So unlike the last time in 94’- 95’ it does appear that the Sinhala government is taking this matter more seriously than it did the last time. Of course the good faith on the part of the Tamils, the Tamil Tigers is there without a doubt. But the fact that the Tamil people have been victims of genocide, the fact that the Sinhala government has perpetrated genocide, which is the most awesome crime imaginable in the international community today, indicates that special protections have to be built into whatever this peace settlement is going to produce, in my opinion. Most human rights’ treaties only protect individuals as individuals. They do not protect groups of people and the problem here is that we have seen the government of Sri Lanka sign on to almost every human rights’ treaty on the books and yet when it has come to the Tamils, they have violated every human rights’ treaty on the books up to and including the Genocide Convention and I won’t go through the list of treaties they’re party to but it’s quite extensive. It’s excellent propaganda that the government of Sri Lanka used. Not only in the third world where one might normally expect support for national liberations’ troubles but also in the west. Sure it looks good on paper but in practice it hasn’t helped the Tamils one bit. Even more distressing, despite the fact that all these treaties, these basic fundamental human rights’ treaties have been willfully and wantonly violated by the Sinhala government up to and including the Genocide Convention. No one else in the international community has acted to protect the Tamils of Sri Lanka. They are, as you know, pretty much on their own and this will later on get me into the status of the Liberation Tigers of Tamil Elam, who have acted to prevent outright genocide being perpetrated on the Tamil people. But clearly the Genocide Convention itself has a requirement, in Article One that all parties must act to prevent genocide, and I quote the exact language, “the contracting parties confirm that genocide is a crime under international law which they undertake to prevent and punish.” And yet no one has fulfilled their obligations under the Genocide Convention to stop the genocide against the Tamils of Sri Lanka. Because of this situation, because of an exterminationist mentality on the part of the Sinhala government, whatever happens in these negotiations must somehow protect the rights of Tamils not just as individuals mentioned in these treaties, but Tamils as an ethnical group; Tamils as a religious group, must be protected as such. Tamils have been the victim of a group crime, and therefore they must be protected as a group with adequate and effective guarantees to make sure that there is not a recrudescence of genocide against them. This gets in then to my second point that I want to make here this evening. The Tamils as a group of people in Sri Lanka, and that is the right of the Tamil people to self-determination under international law and practice. And here I wanted to quote from an international treaty to which the government of Sri Lanka is a party, thus implicitly recognizing that the Tamils of Sri Lanka have a right of self determination and this is from the International Covenant on Civil and Political Rights, to which the government of Sri Lanka is a party. They are bound by their own treaty and says quite clearly in Article One, “all peoples have the right of self-determination.” And clearly, the Tamils of Sri Lanka are a people. Let me continue, “By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Those are rights that the Tamils of Sri Lanka have today even as recognized by the government of Sri Lanka and those are rights that must somehow be protected in these peace negotiations. Those are group rights and not just individual rights. And those are group rights that must be protected because the government of Sri Lanka has attacked the Tamils as a group, not just as individuals but as a group. So, since Tamils have been victims as a group, they must be protected as a group. And one of the basic rights of all, that the Tamils have is this right of self-determination. Another component of this right of self determination, that in my opinion must be protected in these negotiations, and let me continue from this Article One of the International Covenant of Civil and Political Rights to which the government of Sri Lanka is a party. Notice here I am only using the treaties themselves that they are parties to including the Genocide Convention. I am not citing against the principles of international law that they have not already recognized and indeed violated grievously with respect to the Tamils of Sri Lanka. “All the peoples may for their own ends freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation based upon the principle benefit and international law. In no case may the people be deprived of its own means of subsistence.” Yet we know for a fact that the Sinhala government has done everything they possibly can to deprive the Tamil people of their own means of subsistence to a level that is now constituted genocide, in violation of that provision I quoted to you before about inflicting on a people conditions of life calculated to bring about their physical destruction in whole or in part. Notice they are related to each other. The one must protect the other since the Tamils have been victims of genocide they must serve these rights, these economic rights as well, freely dispose of their natural wealth and resources. That right should be protected in these negotiations, so the Tamil people, not the Sinhala government, control their land, their farms, their minds, their plantations, their water; this is critical. Now this also then ties into what is or can be the outcome of these negotiations. It has been publicly reported in the news media in Sri Lanka that negotiations in part will call for the negotiation of an interim agreement, an interim administration. Now it doesn’t say interim to what. According to the press, it just says an interim administration. Here, however, let me give you some idea of the latitude of what that might mean. I’ve already established that the Tamil people in Sri Lanka have a right of self-determination, even in accordance with the Sinhala’s own treaty themselves, one of the sums of the political consequences of this right of self-determination. These are set forth in what is known as the Declaration on Principles of International Law, concerning friendly relations and cooperation among states in accordance with the UN Charter. The government of Sri Lanka approved this declaration in the United Nations General Assembly, so I am not quoting here any provision of law that they have not already approved. And here let me say what are the alternatives then open to the Tamil people, and they are set forth as follows: “The establishment of a sovereign and independent state or the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute the molds of implementing the right of self-determination of that people.” So again, it’s not for the Sinhala government to determine what might be the ultimate outcome here. It is for the Tamil people to determine which of those options they fulfill. So far again from the public record it does not appear that these negotiations will, as such get into the final status issue. Remember its entitled dealing with an interim administration, interim to a final status. The final status can be any one of those states which I just cited to you - total independence, free association, any other type of political arrangement acceptable to the Tamil People. But in my opinion, for what it’s worth, the ultimate final status must be guaranteed and protected in these negotiations. This can be done and I think in deference to the dead of the Tamil struggle, it must be done. Even if it does not appear that this interim administration will result in the immediate declaration of Tamil Eelam, still that right must be preserved. Again, this is for the Tamil people themselves to determine the final status. What will be the nature of their relationship with the Sinhala government for the indefinite future? Finally, these comments bring us to the status of the Liberation Tigers of Tamil Elam. I will simply refer to them as the Tamil Tigers or the Tigers. As you know, one of the final issues before these peace negotiations can begin is the de-proscription of the Tigers by the government of Sri Lanka. This has not yet happened. It very well could prove to be a stumbling block to the opening of these negotiations. I certainly hope it will not. If Israel can sit down and negotiate with Palestine Liberation Organization, certainly the Sinhala government can sit down and negotiate with the Tamil Tigers. And we know for a fact that the Tamil Tigers are prepared to sit down and negotiate in good faith with the Sinhala government. The Tigers have insisted that the domestic legislation criminalizing them be waived before these negotiations start. As you know, the Sinhala government has incorrectly taken the position for domestic and international propaganda purposes that the Tigers are nothing more than terrorists. This is ridiculous. You do not sit down and negotiate cease-fire agreements with terrorists. Indeed, I have reviewed the negotiating history of the last set of negotiations between the Tigers and the government of Sri Lanka. The Deputy Minister of Defense in his correspondence with the Tigers called this an ethnic war, a civil war, an armed conflict .We international law professors call that language a recognition of belligerency. That is a formal term of ours meaning that your opponents are not terrorists and criminals. You do not recognize a civil war and ethnic war and armed conflict with terrorists and criminals. You do that with a representative of an opponent in an armed conflict, a war. And in an armed conflict, a war and a civil war, both sides are on equal footing. The Tigers on the same footing as the government of Sri Lanka and should be treated on the same footing as the government of Sri Lanka for the purpose of these negotiations. Now that being said, we get into the last point here of the status of the Tigers as a national liberation movement under international law and practice. There are many groups all over the world and even here in the United States who have said, “Oh yes, I’m a national liberation movement. I won’t go through all of these claims, all of these groups, all of these organizations. All of them are completely bogus. One, you have to have first, before you can get into the question of a national liberation movement, is a people with a right of self-determination. That is the basic requirement to begin with. And so we have here in the United States the so-called Simbanese Liberation Army. Well, I’m not going to get into it, but they did not represent the people with right of self-determination. Maybe they represented disaffected, white, middle class college students; but disaffected white middle class college students don’t have a right of self-determination. The Tamil people do have a right of self-determination and pursuant to that right, they have a right to an organization to defend the Tamil people and to persecute their right of national liberation. And here there is a test of such a movement that if can be called in Protocol Number One to the four Geneva Conventions of 1949, the Protocol Number One is dated 1977. It does not use the word “national liberation movement”, but when the convention was drafted everyone understood exactly what it meant, that it was intended to apply to National Liberation Movements such as the PLO , or the ANC in South Africa or _____ in Zaman in the former Rhodesia, or the NPLA or ----- and many of the other national liberation movements in Africa, which by the way all succeeded at these states came into being (drowned in applause). Now, let me go through them this ____ here and see if the Tigers qualify, if they meet this test set forth in Article One, paragraph 4 of Protocol One of the four Geneva Conventions. And by the way, this Protocol One was drafted on behalf of the United States government by my teacher of international law at Harvard Law School, who later became Judge of the International Court of Justice at the time he taught me the laws of war. So, you need an armed conflict, number one. And clearly, as I said before, the Deputy Minister of Defense acting within the scope of his authority admitted in a correspondence to the Tigers, official correspondence, that this was an armed conflict, an ethnic war, a civil war. So they already admitted an armed conflict in which peoples. So again, you need a people with a right of self-determination. We have here again in the United States a so called “white people’s liberation army,” something along those lines again, disaffected white people in the United States who don’t like the United States federal government and don’t want to pay their taxes. Well, I guess I’m a disaffected white person in the United States; I don’t particularly like the federal government and I certainly don’t like paying my taxes, but that doesn’t give me and my type the right of self-determination. We are not the people within the meaning of Article One, paragraph 4 of Geneva Protocol War, but the Tamil people of Sri Lanka are a people with a right of self-determination. I have already established that. You have a separate language from which race, nationality, ethnicity, you see yourselves as a separate race of people and you are perceived as such by the Sinhala government, which for that precise reason has attempted to exterminate their status. So, no better proof is needed than that. So again, you need a people with a right of self-determination and clearly the Tamils of Sri Lanka have it. You need an armed conflict; I’ve already established that has been conceded by the government of Sri Lanka itself; our fighting against colonial domination and alien occupation and against racist regimes. It can be either one of those three, colonial domination, alien occupation and against racist regimes. We extensively litigated this entire matter in the Suresh case up in Canada. If you are interested, there are transcripts of the testimony given by Professor Faulk of Princeton and myself on this precise point that the Tamils of Sri Lanka are fighting against colonial domination. Clearly, when the British left Ceylon they put the Sinhala in power and left them as power in a neo-colonial type of situation in respect to the Tamils. So that aspect applies without question. Alien occupation. Well of course we’ve had the Sinhala move into Tamil lands, seize Tamil lands, bring in colonists and settlers and adopt a policy openly and officially of colonization with Sinhala settler in Tamil lands, very similar to what Israel has done in Palestinian lands and that is exactly why that notion of alien occupation was prohibited, to pick up that type of practice and against racist regimes. Well again, it is very clear that the Sinhala government is clearly racist against the Tamils, and here I define racism in a precise legal manner. The International Covenant on the elimination of all forms of racial discrimination to which, again, Sri Lanka is a party and the Sinhala government has paid absolutely no attention whatsoever to the sacred requirements of this treaty when it comes to the racist treatment it has inflicted upon the Tamils. And so, you have an armed conflict; you have the people with a right of self-determination; they are fighting colonial domination AND alien occupation AND against a racist regime in the exercise of their right of self-determination. All of that is what is happening today in Sri Lanka and that fight is being conducted by the Liberation Tigers of Tamil Eelam. For this reason, since the Tamil Tigers clearly fit that definition, they are not a group of terrorists or criminals. Geneva Protocol One treats the Tamil Tigers as an army fighting in an international armed conflict, what we call a war. They are soldiers, not terrorists, not criminals. And as I said, even the Deputy Minister of Defense of the Sinhala government in 1995 conceded an official correspondence with the Tigers that this was an ethnic war, an armed conflict and a civil war, so nothing could be clearer. The Tamil Tigers are a party, to use the exact language of the Geneva Convention, to this conflict. Their soldiers are entitled to be treated as prisoners of war and just as the PLO sat down and negotiated with the government of Israel, the Liberation Tigers of Tamil Eelam, pursuant to the right of the Tamil people to self-determination have the right to sit down and negotiate with the Sinhala government over their mutual future, whatever that might be. I cannot predict what will happen at these negotiations. I do hope that the final stumbling block will be eliminated, that the Sinhala government will lift the ban of proscription against the Tamil Tigers and that both sides can sit down as equals. The Sinhala government representing the Sinhala, the Tigers sitting down and representing the Tamils and also taking into account the interests of the Muslim population here that has to be protected as well. They simply cannot be pushed aside. And try to negotiate an interim administration that will protect the political, economic, social, ethnic group rights of the Tamil people so that they and their children and their children’s children will be able to live in peace and harmony and justice for the next one thousand years at least. Thank you. |
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