The EU's Contribution to the Peace Process

Speech by Gajendrakumar Ponnambalam MP, Lawyer and Member of Sri Lankan Parliament - Tamil National Alliance (TNA), March 7, 2006, Brussels

• Article 1.8 of the CFA entered into by the LTTE and the GOSL mandates GOSL to dismantle all paramilitary forces. This did not take place
• The LTTE and the GOSL held talks in Geneva on the 22nd and 23rd of February this year, incidents targeting Tamil civilians have continued
• The Tamil Nation is being consistently denied meaningful access to Governance to pursue their political, economic, social and cultural development
• To heap the LTTE with terrorist organizations is not only unacceptable to the Tamil people, but will also embolden an intransigent and defaulting Sri Lankan State to continue to deny the Tamil Nation its right to self-determination.

Article 1(2) of the UN Charter provides that one of the purposes of the UN is “To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples”. Article 55, concerning Economic and Social Cooperation, instructs the UN to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights “with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.

Subsequently the 1960 Declaration on the Granting of Independence  to Colonial Countries and Peoples in Article 2 states, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status freely pursue their economic, social and cultural development”. The Declaration also adopts a functional definition of colonialism, speaking of colonialism in “all its forms and manifestations”. Thus, it does not limit itself by its express terms, to the subjugation of non-European peoples by Europeans. Rather, it undertakes a practical approach in which the emphasis is upon the fact of subjugation by a racially or ethnically distinct group, which need not be European. Clearly, as long as peoples living within independent states continue to suffer the same ills and consequences under their new rulers that they suffered under traditional colonialism, then the principle of self-determination retains its applicability.

By 1966, the right of peoples to self-determination had made its appearance in the two International Covenants on Human Rights as a free standing maxim, beyond the confines of normative practices on decolonization. The provision in Article 1 of both Covenants was significant because, for the first time, the right of self determination had been formulated within a universal document concerning human rights, which recognized the legal obligations of the state parties to it.

Of crucial importance to the understanding of the present status of the right to self-determination outside of the decolonization era is the General Assembly’s 1970 Declaration on Friendly Relations and Co-operation among States. Paragraph 7, which deals with the maintenance of territorial integrity, has been interpreted to recognize the legitimacy of secession under certain circumstances.

The first part of paragraph 7 warns that nothing in the foregoing text should be construed as authorizing or encouraging the dismemberment or impairment of the territorial integrity or political unity of sovereign and independent states. Paragraph 7, however, implies that not all states will enjoy this inviolability of their territorial integrity, but only those states “conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above”. In a telling final clause, paragraph 7 offers a partial definition of the meaning of the compliance provision, by stating “and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color”.

The notion embodied in this final clause is clearly, that the legitimacy of government derives from the consent of the governed and that consent cannot be forthcoming without the enfranchisement of all segments of the population. By placing the language at the end of the paragraph 7 in the form of a saving clause, the Declaration affirmed the concept of “consent of the governed”. Therefore, if a government does not represent all of its peoples it is illegitimate and, thus, in violation of the principle of self-determination, and this illegitimate character serves in turn to legitimate “action which would dismember or impair, totally or in part, the territorial integrity or political unity” of the sovereign and independent state.

So clearly, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States clarified and reconciled the different approaches to the right to self-determination, as espoused over the preceding years in the various UN resolutions and international instruments. It instilled the primacy of seeking an improvement of the condition of individuals and minority nations within multi-national states, by subjecting those states to external international pressure. It clearly inverted the movement to establish self--determination as a human right along with others, such as the establishment of a representative government, to be observed when acting in compliance with the principle of self-determination. And finally, it reinforced the right to self-determination by brandishing a legitimization of secession where the coercive force of international opinion was insufficient to moderate a state’s internal policies.

It is also relevant to recall the decision of the Supreme Court of Canada in the case relating to the secession of Quebec. The Court ruled, and I quote:

“The International Law right to self-determination only generates at best a right to external self-determination, in situations of:

• former colonies,
• where a people is oppressed as for example under foreign military occupation, or
• where a definable group is denied meaningful access to Government to pursue their political, economic, social and cultural development.

In all three situations the people in question are entitle to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination”

The Court further ruled and I quote “that such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions”

In the island of Sri Lanka however, unlike in Quebec, a definable group, the Tamil Nation, is being consistently subjected to the hegemony of the Sinhala Nation. The areas of historic habitation of the Tamil-speaking people is being oppressed by the occupation of the Sri Lankan State’s armed forces, which is 99% Sinhala in composition. And the Tamil Nation is being consistently denied meaningful access to Governance to pursue their political, economic, social and cultural development. This was the clear impact of all three constitutions in Sri Lanka, which in the face of the demand for a power-sharing arrangement as a form of satisfying the Tamil Nation’s right to self-determination, entrenched the unitary character of the Sri Lanka State.

The mandate obtained by the Tamil National Alliance (TNA) has been yet another demonstration of the consistent Will of the Tamil Nation to exercise its right to self-determination. The expression of this Will has been loud and unambiguous over the last fifty years, and remains today the bulwark of the legacy of the Tamil National liberation struggle.

Whilst the Tamil People have repeatedly stated that we are prepared to arrive at a negotiated solution that gives expression to this legacy, and, at the same time, not divide the country, the systematic undermining of this Will has accentuated and aggravated the Tamil National question into what it is today.

Sovereignty vests with the Peoples of each state. By extension, it is only when the Sovereign Will of all the Peoples of a particular state finds expression in the structure of the state that it can be said that the state belongs to all its Peoples.

The Sri Lankan state as it exists today, only gives expression to the Sovereign Will of the Sinhala People, and continues to undermine and reject the Sovereign Will of the Tamil People. And, as such, the Sovereignty of the Tamil People does not vest in the Sri Lankan state, and accordingly the Tamil People show no loyalty to the Sri Lankan state. Loyalty is a sentiment, not a law. It rests on love, not on restraint. The governance of the Tamil Nation by the Sinhala Nation rests on restraint, and not on love; and since it demands no love, it can evoke no loyalty.

The contradictions between the Will of the Tamil People, and the actions of successive governments, have continued for quite long and surely cannot continue indefinitely. The concept of Sovereignty being vested in the people, has no meaning as far as the Tamil people are concerned, if their Will as expressed at successive elections, does not give them an effective say in governance, in keeping with the Will expressed.

The Will of the Tamil people is that their right to self-determination in their area of historical habitation – the NorthEast, be accorded due recognition, so that they can pursue their political, economic, cultural and social development in keeping with their own wish. The right to self-determination has been consistently denied to the Tamil people. Despite the clear expression of their Will at successive elections, they continue to be powerless in regard to the management of their own affairs. Nothing can be more humiliating to the Tamil psyche than the non-recognition of their collective Will. This situation, if continued, will have serious repercussions.

This is the sad reality faced by the Tamil People for over fifty years, which led to the cry for the establishment of a separate state in the area of historic habitation of the Tamil-speaking people in the NorthEast of the island of Sri Lanka. And despite this National Liberation struggle led by the Liberation Tigers of Tamil Eelam (LTTE) reaching the position of having won over physical control of nearly 70% of the Tamil Homeland, even in this late hour the Tamil Nation has demonstrated its desire to find a viable alternative to a separate state by entering into a Ceasefire Agreement with the Sri Lankan State just over four years ago. The reaction of the Sinhala Nation has been to elect a President as recently as November 2005 whose express policy, for which an overwhelming majority of the Sinhala people have voted, was to:

-       Uphold the Unitary structure of the state;

-       Reject the concepts of power sharing, federalism and self-determination;

-       Refuse to recognize the areas of historical habitation of the Tamil-speaking people.

There can be no doubt in anyone’s mind that the cumulative effect of these policies will be to shut the door on any possibility of finding a negotiated solution to the Tamil National question.

Not only has the last four years of the peace process demonstrated a complete lack of will by the Sinhala Nation to accept the Tamil Nation’s legitimate and just political aspirations as recognized by International Law, but rather the Sinhala Nation has been systematically been undermining the collective will of the Tamil people not only politically, but militarily as well.

Whilst Article 1.8 of the CFA entered into by the LTTE and the GOSL mandates the GOSL to dismantle all paramilitary forces, this did not take place. On the contrary, the Sri Lankan Armed Forces have been protecting and promoting new Paramilitary Forces. This has resulted in killings and grave incidents that are seriously jeopardizing the CFA. These incidents continue to date.

Furthermore, over the last few months, over 40 Tamil civilians have been killed within the Jaffna district, around 20 Tamil civilians have been killed in other districts in the North-East, around 50 Tamil civilians have disappeared or gone missing in the North-East, Tamil civilians are being increasingly manhandled and assaulted in the North-East, Tamil civilians in the North-East are being threatened and intimidated, Tamil civilians are being deprived of the opportunities to carry on their occupation particularly farming and fishing, and Tamil civilians, due to the above stated reasons, have begun to flee  to India and to seek refuge in LTTE- controlled territory and Public buildings in their respective districts.

In particular:-

(1) Mr. Joseph Pararajasingham, a senior Member of Parliament of the TNA was gunned down within the premises of St. Mary’s Roman Catholic Church in Batticaloa in the early hours of 25th of December 2005 - Christmas night - while he was at prayer. The road leading to the church was manned by armed forces, while police personnel were on duty outside the church. This is in Government- controlled territory. It is clear that the assailants carried out the assassination with the involvement of some section of the security forces. Though the identity of at least one assailant is ascertainable, no steps have been taken to apprehend anyone.

(2) Five innocent Tamil youth, all students engaged in higher education, were deliberately shot and killed in cold blood in Trincomalee by an identifiable group of the security forces sent to Trincomalee around 7.45 pm on 2nd of January 2006. This was in Government-controlled territory. On the evidence available, both direct and circumstantial, the offenders can be identified and brought to justice. The judicial inquest has ruled that these young men came by their death as a result of gunshot injuries.

(3) On the night of the 16th January at Manipay, Jaffna, within Government- controlled territory, members of the security forces and Tamil paramilitary groups, functioning together, shot five members of a family, three of them fatally, while the other two have been admitted to the Jaffna General Hospital with grave injuries. This was an unwarranted attack on a Tamil civilian family. The father, Mr. Bojan, was the president of the Northern Region Scouts Association.

(4) On the 23rd of December 2005 four Tamil civilians were shot and killed and the bodies burnt in their house by security forces at No: 44, Victoria Housing Scheme at Pesalai, in Mannar. The four persons belonged to one family - father, mother, son and daughter. This was an unwarranted attack by the security forces against a Tamil civilian family, within Government-controlled territory, The daughter of the family was only four years old.

The above stated matters reveal that the Tamil civilian population in the North-East is facing a grave and serious situation.

Members of the Tamil civilian population have been indiscriminately arrested in large numbers, many females in their night clothes without any reasonable suspicion or justifiable reason, purely on the ground of their ethnicity, photographed in their night clothes and released after questioning at various Police Stations.   This is a blatant violation of their fundamental human rights. This has happened in Colombo city. Tamils in the up country areas have been similarly arrested.

The excessive presence of the Armed forces in Tamil civilian inhabited areas in the North-East, particularly in Jaffna and in Trincomalee, is most oppressive and humiliating to the Tamil people. In Trincomalee this situation has continued for more than the past eight months, causing immense inconvenience and discomfort to the Tamil civilian population.

Even though the LTTE and the GOSL held talks in Geneva on the 22nd and 23rd of February this year, incidents targeting Tamil civilians have continued, with several people having been killed, and several people having disappeared. Ten staff members belonging to the Tamil Rehabilitation Organization were abducted by paramilitary forces, just 100 meters from the Government armed forces checkpoint in Welikanda, soon after registering at the said checkpoint. Of the ten abducted, three workers were subsequently released. The other seven continue to be missing.

There is no doubt that paramilitary forces and sections of the armed forces are responsible for these continuing incidents. The LTTE also continues to be targeted by the paramilitary Forces working in collaboration with the Government Armed Forces. As recently as last Saturday, two LTTE cadres were killed when an LTTE sentry situated in Vavunativu in Batticaloa was attacked.

In this most uncertain backdrop, the international community, and the European union in particular, has a very important role to play. It is time for the world community to live up to its obligations under International Law and recognize that the over fifty year struggle of the Tamil Nation has the sanction of International Law. That the Sri Lankan State continues to be the defaulting party as far as finding a solution to the conflict is concerned.

It is also time that the International Community distinguishes a legitimate National Liberation movement like the LTTE from organizations like Al-Quaeda. To heap the LTTE with terrorist organizations is not only unacceptable to the Tamil people, but will also emboldens an intransigent and defaulting Sri Lankan State to continue to deny the Tamil Nation its right to self-determination. Such a denial can only result in one thing, and that is the serious escalation of the conflict and nothing less.

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