“Trial by Battle” and the Tamil Nation

by Dr Sandrasegaram Paramalingam, July 31, 2014

  1. Introduction.

Since the formation of the United Nations in 1945, all Member States were imposed with the duty and obligation to reach settlement of their disputes by peaceful means in conformity with the principles of justice and international law. Although the Charter of UNO devised the International Court of Justice  for the State parties  to  refer their disputes to the Court , another category of subjects  of international law  including nations , nationalities , peoples and minorities  were left without any locus –standi  to any international judicial bodies  for resolving their grievances with their parent state. The international law making process of the UNO succeeded in creating conventional formulations to recognise rights and entitlements of non-state actors who are generally referred as secondary subjects of international law. However, due to lack of meaningful mechanisms for settlement  of disputes between  states and non state actors , internal conflicts  including  sovereignty claims  escalated very often beyond national territories  and were  transformed as threats to regional and international peace  while  claimants of  sovereign rights  were met  with high handed collaborations.

The resistance of non-state actors against their governments was observed as “Rebellion against tyranny” in the Universal Declaration of Human Rights of 1948 and in latter days it has been claimed as “terrorism” while peoples’ resistance in Arab states was described as democratic springs. However in many occasions it was said that the resistance of people against brutal and rough regimes cannot and should not be described as terrorism.  The Tamil nation of Sri Lanka, over the last three and half decades has pleaded to the international community and to the UNO  that their action was for their self preservation and self-determination and remedy for the improper de-colonisation which completely denied their due rights and compelled  them  to live under local colonialism.  A few veto power holding members exercised their noble veto power in the Security Council contrary to the principles enshrined in the Charter for advancing their geo-political interests and legalising their arm sales and failed to perform their duty to protect the vulnerable people who were brutalised by their own state. The veto powers holders were able to agree unanimously to concentrate on the ongoing Israel –Palestine conflict while  they failed to stop  the mass murder at Mulivaikal  and facilitated for  barbarity  under the pretext of “Asian solidarity”. The veto powers that resisted the discussion on Tamils crises at the Security Council should be held liable for the entire atrocities.

As a result of the failure and denial of justice by the Security Council and the agencies of the UNO, the international community mistook the struggle of the Tamil nation as “terrorism”. The Tamil nation became the victim of the biggest mass murder of the 21st century at Mullivaikal. The internal panel review of the UNO confirmed its failure to protect the Tamil people; even though, the Tamil nation had to wait for five years to look for judicial forum for seeking relief and remedy.

The Permanent Peoples’ Tribunal in its judgement delivered on 10 December 2013 unanimously determined that the brutal end to the war against the Tamil people was amounting to genocide and war crimes. However it was claimed by the regime of Rajapaksha that his war and commands were against the “terrorists” which will be determined by the Panel of the UNO in due course. Further, it was  opined that how a war should not be won while Ranil Wickrasinghe the leader of opposition and who signed the Peace Accord with the LTTE has recently said that he could have brought an end to the war in a different way.  However the entire international community and key players of the UNO had known that the people living under the defacto state of the LTTE would end up with adverse consequences. The UNO left the people who were in the No Fire Zone [NFZ] in a pathetic and helpless situation and failed to challenge the order of Rajapaksha for the staff of the UNO to vacate from the Vanni territory. Channel 4 has excellently documented the departure of the staff of the UNO while the innocent Tamil people were pleading for them not to leave.

It is important to remember the event of when the army, under the command of J.R. Jeyawardene  the President of SriLanka,   commenced atrocities  against  the people of the Jaffna  peninsula in 1987.  The pilot of Miraj aircraft of the Indian Airforce  told the airspace controller in Colombo that “ whether you like it or not I am entering  into your air space”  and  dropped humanitarian aid in Jaffna. International law commentators recognise that the military involvement of India in 1970 in the East Pakistan crises and entering air space of Jaffna peninsula are amounting to humanitarian intervention and the operations are within the recognised principles of international law. It is unfortunate that in May 2009 when the Tamils were bombarded by their own government, the states which formulated the doctrine of R2P were silent. The Tamil nation was unable to get mercy not only from the Indian air force but also from the Pacific Command of the USA.

There is a tendency in the ruling elite of the major nation of the conflict to justify that their actions and commanding responsibilities were within law and aimed at protecting sovereignty and territorial integrity. The contemporary national and international judicial interpretations endorse that states have to fulfil specific conditions including recognising self-determination of peoples and rights of minorities in order to enjoy sovereign power and territorial integrity failing which the oppressed peoples and nations within states have a right under public international law, to secession. The findings of the Canadian Supreme Court of Canada in the Quebec Sovereignty Referral case endorse the above conditions.  The jurisprudence  and judgements  of the  above  case  have  been  submitted to the ICJ  by USA, United Kingdom and Republic  of France  the three out of the five veto power holders during the proceedings of the case  for Advisory opinion  sought  by the General Assembly of the UNO  in respect of the Unilateral Declaration of Independence for Kosovo.  It is essential to mention that  the conventional formulations of the UNO and judicial pronouncements recognise the right of the Tamil nation to determine their own fate without any external interference. Any visiting diplomats should do their home work on the legal dimension of conflict of the island and entitlement of the Tamil nation before they bully and threat its elected representatives to force them to give up the claim for right to self-determination and self-rule.

Vattel , the classic international lawyer observes  that  the absence of judicial fora  for  weaker nation  of  state to seek judicial remedy  and come with the idea of “Trial by battle”. In his Law of Nations[1795] he states that

 “———–when the protection  and well being of the weaker nation is undermined by the major  nation of the state , the former  is entitled to separate itself from the state  by any action including armed resistance  and of imploring foreign aid  for creation  of fresh methods for  its security  and  a condition  for trial by battle .”

He further elaborate within this context  that “ if the   nation does not resist the encroachments of that power ,if it makes no opposition to them ,if it preserve profound silence ,when it might and ought  to speak, its patient acquiescence becomes in length of time  a tacit consent  that legitimates the rights of  the usurper.———- If the  weaker  nation proves  that the violence  fear prevented  its giving testimonies of its opposition , nothing can be concluded from its silence, which therefore gives no right to the usurper. 

Michael Akehurst an international law commentator is of the view that

“If the right to self-determination is recognised as an integral concept of international law and if it cannot be achieved by peaceful means, it cannot be wrong to enforce the right of the claimant by use of force”.  A similar view was adopted by the members of the NATO at the proceedings of the ICJ issued by the Federal Republic of Yogoslavia stating that they enforced the Resolutions of the Security Council though the use of force was not authorised.


  1. The Battle of the Tamil Nation:-

Colonial and historical wrongs against the Tamil nation were endorsed at the time of the decolonisation in 1948.The Labour Government’s agenda for introducing a unitary constitution for de-colonising Ceylon was vehemently condemned during the passage of the Ceylon Independence Bill 1947.  It was said in the House of Commons that the “Island of Ceylon is not a single political unit; it has two language speaking belts. ———.The unitary model constitution will fail democracy in Ceylon.”

Post –colonial socio-political events of the island reveals how the Tamil nation was made to live under oppressive condition and it was described as a “forced marriage”. Constitutional safe guards were violated and means of “constitutional terrorism” were adopted to bypass the judicial process including axing appeals to Privy Council by introducing first amendment to the Soulbury constitution in 1970.  Since 1956 the Tamil nation had formulated an electoral claim for the right to federalism and self rule which fall within the context of internal self–determination. During the   drafting stages of the Constitutional Assembly created after the 1970 general election, the Federal party proposed a federal constitution for achieving unity among diversity. It contained three federal units for a Sinhala speaking belt while one for Tamils and one for Muslims in the Tamil speaking belt even though there was no claim for a federal unit from the representatives of the Muslims.  As a result of the denial of constructional justice, S.J.V Chelvanayagam and representatives of his party boycotted the proceedings of the Assembly which ended up in proclaiming a republican constitution to satisfy the aspirations of the Sinhala nation. Even at the time of proclaiming de Gaulle model constitution in 1978, there were no attempt by the government to negotiate with the Tamil nation which overwhelmingly gave electoral mandate for the “Vaddukoddai Resolution.” There was no space for the Tamil nation to achieve its rights by democratic means. The political affairs of the island since then and until the end of Mullivaikal war in May 2009 reminds us that

“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.



3. The Trial by Battle:- 

Contemporary history shows events of peoples struggle brought justice from Nuremberg to The Hague. The battle of the Tamil nation in various forms and means succeeded them finally by setting up an international investigation mechanism on Sri Lanka. Advisory opinion of the Experts of the UN Panel was followed by initiatives of the Human Rights Council which established the mechanism for international inquiry on the conduct and consequences of the end of the war in May 2009.  The Tamil nation thank and appreciate the  members of the Human Rights Council for supporting and being absentia in the adoption of Resolutions as it empowered the commissioner to set up a mechanism for inquiry. However, it is essential to inform those states of the challenges ahead in achieving justice. Although the first Resolution adopted by the Human Rights Council congratulated the government of Sri Lanka, it was confronted by the report of the UN Experts appointed by Ban Ki Moon, the Secretary General. The States that supported the first Resolution on Sri Lanka were requested to re-reconsider their position relying on the findings of the Report.

The Resolution adopted in March 2014, demands and empowers the High Commissioner of the Council for an international inquiry mechanism in the absence of a creditable national process with tangible results. Accordingly the Commissioner set up the mechanism and when the Panel of Investigation of the Human Rights Council on Sri Lanka commenced its first session on 21 July, the President of Sri Lanka announced the appointment of three foreign experts who are renowned in the field of war crimes and crimes against humanity to his existing local commission of inquiry known as “Pranagam Commission on disappearances”. It can be seen as a last attempt of Mr Rajapaksha to rescue him from international danger as he took a u- turn from his previous position, by mandating a wider scope and including international experts in order to establish “independent and credible” investigations as requested by the latest resolution of the Council. However, its scope and procedures are yet to be revealed. As far as The Panel of the Human Rights Council is concerned it has commenced its works with a timeframe and it was reported that financial resources were in place.

Now the ball is in the victims’ court. We have to present our ill fate and serious and systematic violations of rights under the pretext of “sovereignty and territorial integrity” and “eliminating terrorism.”   One of the reports of the World Bank titled “Asian Drama” in its chapter on Ceylon identified that “the majority has the minority complex” and later J.R Jeyawardene, the first executive president of the country, once told the foreign journalists that “we have a problem of minority which is not only powerful, but also very successful”. The post colonial history of the state comprises a series of political and military agendas that were aimed at destroying the well being, safety, security and integrity of the Tamil nation. The investigation initiated and prompted by the Human Rights Council, may be a green light for delivering justice and remedial relief for a permanent political solution provided it can overcome the contamination of geo-political factors.

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