By Charani. L.C.M. Patabendige
Charani Patabendige is an Honorary Associate Research Fellow at the Institute of National Security Studies, the think tank for Ministry of Defence Sri Lanka, she holds a Bachelor of Laws degree with a second class and an Advanced Diploma in Transitional Justice from Bandaranaike Centre for International Studies with a Distinction Pass. Currently, she is reading for the final year of the Attorney at Law examination. Her research interests are on counter-terrorism, religious extremism drug menace and national security.
Sri Lanka is a country with a rich heritage, a diverse community that is multi-racial, multicultural, multi-ethnic, and multi-religious. This multifariousness is what makes the county alluring. Due to these nuances, a country always become vulnerable to violence, as there are conflicting ideologies. The one single fact that holds these unique strings together is being a ‘Sri Lankan’. It is important to foster togetherness as a nation irrespective of differences to reign sovereignty and respect the human rights of all citizens.
Liberation Tigers of Tamil Eelam (LTTE)
LTTE is “widely recognized to be one of the most proficient and dangerous guerrilla/terrorist groups in the world. This reputation is owed to the extremely sophisticated international network that has been built by the organization to sustain its 26 year-long struggle for the creation of an independent state of Tamil Eelam”1
The rise of the LTTE, the terrorist group is not an overnight success. The fundamental cause that gave rise to the war is, LTTE the separatist Tamil insurgents demanded a separate land in a sovereign nation, which eventually threatened harmony and democracy. The approach of LTTE was tenacious. It was a sophisticated, well-formed, facilitated and financially stable insurgent group led by Vellupillai Prabhakaran. It had a separate administrative centre, police, military, courts, banks, schools. They were able to seek assistance from powerful nations as per their whims and fancies.
The stratagem of LTTE is strictly in breach of human rights law and International Humanitarian Law. Moreover, they assassinated prominent world leaders, civil servants, parliamentarians, journalists, military officers, police officers and the public as a whole. Additionally, they attacked nonmilitary targets such as Central Bank, Bandaranaike International Air Port Colombo, religious places including Temple of Tooth Relic, Jaya Sri Maha Bodhiya. Moreover, LTTE closed the gates of the Mavil Aru reservoir and cut the water supply to villages by preventing access to water. Furthermore, they used human
shields, detained civilians, used suicide bombers and conscripted child soldiers. Additionally, they promoted extremism, radicalized and brainwashed people to the extent of “willingness to swallow the cyanide pill by the LTTE [is] seen as commitment to the Tamil cause”2 . Moreover, they posed nontraditional security threats such as drug smuggling.
As a result, the notorious, well-established LTTE terrorist group was proscribed by many countries including Sri Lanka, the United Kingdom, Canada, India, United States, European Union and Malaysia. Looking at the above atrocities committed by LTTE it is evident that several International humanitarian customary laws have been breached. Such as the principle of distinction where they were unable to distinguish military and nonmilitary targets3. Harming specifically protected persons and objects, use of weapons and violating laws on the treatment of civilians and persons hors de combat.
The Government of Sri Lanka (GOSL) attempted to negotiate with LTTE and mediate the matter. “Indeed, the LTTE entered negotiations five times,...In mid-2006, sensing victory was in its grasp, the LTTE deliberately ended the Norwegian-brokered ceasefire...In response, the Sri Lankan government finally decided to change its strategic objective, from negotiating with the LTTE to annihilating it.”4. Sri Lanka's former foreign secretary, Palitha Kohona stated that LTTE “used the cease-fire agreement to regroup, rearm .forces”.5 GOSL successfully defeated the LTTE by conducting a humanitarian mission.
Law relating to the crime of Genocide
Sri Lanka is a party to the 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide (GC).
When perusing the legal provisions, it is crystalline that the humanitarian mission against the LTTE is justifiable. Sri Lanka abided by the International Humanitarian Law (IHL) and human rights law. On the other hand, LTTE contravened human rights. GOSL had to undergo a humanitarian mission to harbor the rights of all citizens the Sinhalese, Tamils, Muslims and Burghers. GOSL did not conscript child soldiers, they never used human shields. The military personnel were recruited voluntarily as per the standards of international humanitarian law. Therefore, the false allegations imposed on Sri Lanka needs to be imminently countered.
International law concepts
As per the United Nations Charter, there is a plethora of concepts such as territorial sovereignty, the principle of nonintervention and responsibility to protect which can be used to oppose the claim of genocide.
As per Article 1 of the UN, charter. The Purposes of the United Nations are, “To maintain international peace and security. To take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. This exhibits the ability of a state to defend its rights to maintain peace.
Section 2(1) of the UN charter states that the Organization is based on the principle of the sovereign equality of all its Members. Art. 2 (4) states Prohibition of threat or use of force in international relations. Article 2 (7) states, “UN has no authority to intervene in matters which are within the domestic jurisdiction of any state, while this principle shall not prejudice the application of enforcement measures under Chapter VII of the Charter”. Therefore, it is perspicuous that steps taken by the GOSL conform to the standards, which are duly mentioned.
The gravity of the issue is, LTTE is now rising in foreign countries, and they have taken a more intellectual approach by trying to convince world leaders, dispersing hate speech and false news, using youth to promote terrorism. Moreover, they are attempting to delist it from the proscribed terror organization.
As discussed extensively, it is explicit that the GOSL has conducted a humanitarian mission in the interest of citizens. Moreover, the government has taken an array of steps to nurture national harmony aftermath of the war.
Formulating a way forward
Diplomatic relations play a vital role. To survive in the modern diverse world, it is important to rely on co-existence. Therefore, fostering international cooperation will enhance friendly relations and will affirm nonintervention.
It is important to prevent the dissemination of false information.
It is essential to prevent hate speech without breaching the right to privacy. Three forces, police as well as the intelligence unit must be attentive. It is important to investigate and monitor social media, printed media to prevent acts that would create ethnic tension. Members of the parliament, provincial council and local council members should not make politically driven hate speech, which would give rise to disputes.
The legal framework must prevent hate speech. Any statement of hatred, prejudice that creates controversy, ethnic tension needs to be penalized,
It is important to establish an inter-agency platform that is well coordinated. Sri Lanka Army, Sri Lanka Navy, Sri Lanka Air Force, Sri Lanka Police and the National Intelligence Bureau need to act together.
Public participation is important. If the public comes with material, secret information relating to terrorism such as attempt to rebel, attack, the messengers’ anonymity needs to be preserved.
GOSL has already done a satisfactory job by establishing a missing person’s office, office of reparations, ensuring victim and witness protection. Sri Lanka has ratified important legal instruments such as the International Convention for The Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018. Additionally, Office for Reparations Act, No. 34 Of 2018 and Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015.
National education policy must be capable of shaping a balanced individual who respects all cultures, ethnic groups and capable of speaking all three languages. GOSL is in the process of making the Sinhala language for Tamil students and Tami language for Sinhalese students compulsory.
Finally yet importantly, it is important to foster togetherness. Establishing an inter-faith dialogue mechanism would promote inter-communal relations.
The Government can take the aforementioned steps to consideration in the best interest of the people.
1 Peter Chalk, ‘Liberation Tigers of Tamil Eelam’s (Ltte) International Organization and Operations a Preliminary Analysis’, n.d., https://fas.org/irp/world/para/docs/com77e.htm.
2‘Unmasking of Prabhakaran -- Brig (Dr) SP Sinha (Retd)’, accessed 2 December 2020, https://www.satp.org/satporgtp/publication/idr/vol_17(2)/sp_sinha.htm.
3“In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
4‘How Sri Lanka Won the War’, accessed 1 December 2020, https://thediplomat.com/2015/04/how-sri- lankawon-the-war/.
5‘Sri Lanka’s Government to Withdraw from Truce Agreement | Voice of America - English’, accessed 2 December 2020, https://www.voanews.com/archive/sri-lankas-government-withdraw-truce-agreement.
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