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Some aspects on the barriers to the Tamil cause

Point of View: By A. Rajasingam

The Tamils all over the world are concerned of the plight of the innocent Tamils who are caught in the armed conflict. On one side the Government calls it has waged a war on the terrorists in order to rescue the Tamils from the clutches of the LTTE. On the other side the LTTE maintains the people are with them. Apparently the Tamils also do not have faith in the Armed Security Forces fearing that they will be persecuted on suspicion of a LTTE cadre or sympathizer. Further, the Government, too, has not demonstrated its good faith without placing a meaningful solution for the innocent Tamils to decide a better future. Moreover, there are reports that the LTTE held these innocent Tamils as shields to protect them. Above all, the Government had denied access to the journalists and the NGOs on whom the trapped innocent Tamils have full confidence. The issue raises the role of the United Nations to deal in such a situation.

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[Barbed wired centres being built to shelter the Vanni displaced in Manic Farm, Vavuniya-Feb 2009~pic by drs. Sarajevo]

A a brief synopsis of the description Convention, Protocols, etc., under the international law will give clear thinking of its operation. Under international law Covenants, Conventions, Exchange of Letters are treated as Treaties. A Protocol is an international agreement that supplements a previous international agreement. All these treaties must be respected based on the maxim “pacta sunt servanda” which is the main principle. A Protocol can amend the previous international agreement or add additional provisions. However, parties to the earlier agreement are not required to adopt the Protocol which is called an optional Protocol. The UN Charter states that Treaties should be registered with the UN for purposes of invoking and the obligations of its members outweigh any competing obligations under other treaties.

Though, generally Treaties prohibit withdrawal, there is room for States to withdraw provided it follows certain procedures of notification. But a multi-lateral Treaty continue to remain in force between other Signatories. Treaties are not permanently binding upon the signatory States. Human Rights Treaties are generally interpreted to exclude the possibility of withdrawal, because of the importance of the obligations.

If a signatory has violated its Treaty obligations, the matter should be brought before an international tribunal as specified in the Treaty which may be subject to conditions. However a Treaty can be terminated on grounds of unforeseen circumstances. The impact of terrorism on the democratic structure becomes a question of supervening impossibility for which there a number of shades of opinion affecting the validity of the Treaties.

Now the conflict between the Municipal Law (national law of the a Sovereign State) and the International Law raises number of issues as to which gain priority. There is on one side the operation of the Prevention of Terrorism Act and the Constitution of Sri Lanka aided by Emergency Regulations., while on the other side the operation of the Geneva Convention on Genocide, Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination against Women, the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment to which Sri Lanka is a signatory.

Though Article 2 (7) of the UN Charter provides that no State shall intervene into the domestic affairs of another country, it is subject to the application of enforcing measures under Chapter 7 of the UN Charter which allows States to retain the right of coercive action, including the use of military force, to protect international peace and security. Moreover, Article 27 of the Vienna Convention on the Law of Treaties states that in the event of a conflict between a Municipal Law and a Treaty, the State is requires to meet its obligations under the Treaty, except where a State's expression of consent to be bound was a violation of a rule of its internal law of fundamental importance by virtue of Article 46 of the Vienna Convention.

Intervention on behalf of “good causes” arise under circumstances where the Municipal laws fail to address the humanitarian issues which are of utmost concern to the international community. Terrorism is a 21st century concept which have a great impact on the democratic structure. Countries have entered into treaties for the suppression of terrorism in any form. But it does not mean killing of humans as stipulated in the Geneva Convention on Genocide.

Rajapakse's government cannot act of its own to continue with the massacre of innocent Tamils by denying access to the NGOs to the war torn areas. The suspension of medical supplies and the basic necessities to the needy at this crucial hour coupled with restrictions on fishing and other matters connected with the daily needs, would tantamount to acts of war crimes. Such grounds can also be treated as “good causes” for intervention by the UN.

There is an argument that a liberation armed struggle may be carried out with a political objective, but terrorism has an impact of demolishing the very foundation of democracy. But does it mean that about 300 innocent civilians should be massacred along with destruction of property to kill a terrorist. This type of situation calls for intervention on behalf of “good” causes. Notwithstanding the importance of the applicability of Municipal laws, there is a moral obligation on the part of the signatories which had entered into a Convention or Protocol to abide by humanitarian laws in the best interests of humanity.

Knowing that the intensified action would result in the likelihood of indiscriminate bombings and shelling on the civilians leading to a genocide in spite of the government giving an ultimatum to leave the terrorist area, still there is a moral obligation on the government to protect them when they are in a helpless situation. The allegation of the difficulties in differentiating a civilian from that of a terrorist is no excuse. In such a situation, there is a moral obligation on the part of the Armed Security Forces as well as of the LTTE to allow the free movement of civilians with the assistance of the NGOs and the journalists to secured places which should be declared no war zones.

Merely blaming the government is also insufficient. Assuming the Armed Security Forces continues with its intensified offensive, there is a right for the LTTE in this case to appeal to the international community with clean hands. The LTTE failed to demonstrate its genuineness on account of the decimation of educated and law-abiding citizens, such as Dr.Neelan Thiruchelvam, Ms.V.Maheswary, who were funded by the international communities to look after the humanitarian task, shows a very bad record of the LTTE. Such bad records have marred all hopes of drawing the attention of the international community.

Though the possible option for the Tamils to lobby in other countries may draw the attention of the international community, there are reservations for the likelihood of being a futile exercise because of the unpredictable actions of the LTTE in not honouring the truce. Past records show that the LTTE missed two golden opportunities, firstly when the Indo-Sri Lanka Peace Accord was signed and secondly when the Draft Constitution (almost on the Canadian model) was proposed by Dr.G.L.Peiris in consultation with Dr.Neelan Thiruchelvam. The assassinations of Rajiv Gandhi and Dr.Neelan Thiruchelvam demonstrated the hate propaganda of the LTTE by way of violating the laws of the country and causing breach of peace, thus proving it has no clean hands to come before the international community.

Mere assertion that the LTTE is the authentic representative of the Tamils also fails when the murders of Tamil politicians, professionals, Principals, government servants, Tamil Ministers and members of other Tamils groups (especially of the Eastern Province) in thousands were killed mercilessly. Moreover, the Tamil Parliamentarians for the hill country Tamils with other Tamil Ministers had voted for the Emergency Regulations (meant to defeat the LTTE's practices), all of which had nullified the call of authentic representative of the Tamils as claimed by the LTTE. At the very inception, the concept of the authentic representative of the Tamils was scoffed by the Tamils in view of the decimation of the Tamils by the LTTE.

The claim of the Government to secure the release of the innocent Tamils from the clutches of the LTTE over shadows the LTTE's treatment of the presence of government forces as a foreign occupation. Had the LTTE accommodated the entire Tamil groups without any discrimination or joined under one umbrella in its liberation struggle then the conflict between the government and the rebels claiming to represent its people would have been meaningful and drawn the attention of international community. Intervention on behalf of “good causes” by the international community was frustrated by the LTTE on account of its ruthless nature. Now the only option available is to solve this conflict through a politically negotiated settlement.

The other issue is whether such an armed conflict between the Armed Security Forces and the LTTE could trigger the internationalization of the ethnic Tamil conflict. In analyzing this issue, there should be a foreign (colonial) domination, when, in fact, it was an internal matter and lacked in characterizing their cause at international level. The assertion that the LTTE treats the government forces as a foreign occupation should be thrashed out to, given the fact that there are some Tamil Ministers looking after the interests of the IDPs. Apparently the members in the Security Council, namely Russia and China will block the issue of the Sri Lankan crisis in the agenda.

However, all hopes of a ceasefire are not lost. There is something called the behaviour of the States especially in South Asia, which look into the mass persecution of innocent civilians. The blunders of the LTTE is due to its hostile attitude which led to the adoption of wrong strategy. The strategy adopted by the LTTE in criticizing and humiliating India in and out of Sri Lanka Parliament, eventually led them to beg India for assistance to enforce a ceasefire. In stead, the wrong strategy was adopted by the LTTE in rallying round the Dravidian political leaders only, thus neglecting the Central government leaders.

Lobbying is a mechanism of carrying on propaganda or participating in the publishing or distributing of statements pertaining to some form of oppression in the political context. The LTTE failed in its exercise of lobbying at direct level where it failed to influence through communication with sections of Tamils such as G.Parthasarathy, P.Chidambaram, etc., who has a voice in the formulation of policies and could have internationalized the ethnic Tamil issue. In contrast, the LTTE only concentrated in its grass root level to influence the Tamil Nadu legislators through an effort to affect the opinions of the general public, which resulted in transforming the issue into a political business among the Dravidian parties. It is time for the LTTE to realize that Sri Lanka is referred to as Colombo Government and India is referred to as Delhi Government. But India cannot be referred to as Chennai Government.

Perhaps their demonstration could have shown the strength of their vote bank. Similarly, Tamil leaders are not confined within the Dravidian class of leaders proclaiming as world Tamil leaders. There are other sections of Tamils such as G.Parthasarathy, P.Chidambaram, etc, on the political front who play a decisive role in the Central Government.

In my view, the Indian Minister Mr.P.Chidambaram, who has a first hand knowledge of the problem in Sri Lanka, since the signing of the Indo-Sri Lanka Peace Accord, could apply pressure successfully for the ceasefire. The surrendering of arms means a symbolic laying down of few arms. Rallying around the other Dravidian political leaders will in no way help in enforcing a ceasefire. Since the formation of the Asian Union have not come into existence, and as India has a final voice, the LTTE should have rallied around the rulers of India, though there is a cold war taking place between the major countries in the SAARC. This does not mean that the LTTE should only participate but should allow Tamils from all walks of life to participate at the negotiations. The LTTE should categorically avoid placing threatening restrictions on other members. If the LTTE can neutralize its arrogance in this way, the Government too can step down for a compromise. Further, such negotiations with the government should be held in foreign soil. The hope of every peace loving citizen is that India and the international community may prefer such a method to avoid bloodshed.

The Sinhalese too should realize that the presence of Tamils in Colombo and in the hill countries does not mean that Tamils will claim separation in those areas. The Sinhalese will be the majority in those areas and the Tamils will be the minorities. The position of its assertion for a Unitary claim throughout this period, instead of a federal solution, ultimately ended that Sri Lanka has become a failed State. The Government should take actions to reduce fear of arrest for no reason in such a situation and facilitate communication, transparency and verify measures that are required for a confident building measure.

This is the hour for all Sinhalese, Tamils and Muslims to shed all differences and allow no room whatsoever for the Armed Security Forces and other terrorist groups to engage or complicit in cases of disappearances, torture and murder of civilians, as already the murder of a six year old school girl at Trincomalee has signaled the beginning of the after effect of the battle before completion. After all, there are still mixed marriages taking place among the Sinhalese and Tamils. A change of heart for mutual understanding is required after realizing the errors through these meaningless wars by way of having a government with Federal features where power will be allowed to be shared by all communities.

(The writer was a practicing Attorney-at-Law in Sri Lanka)