Armed Resistance & the Law – A Tamil Eelam Case Study
Nadesan Satyendra, 10 May 1998, 2009
Introduction – Relevance of legal status – Legal status of the Tamil armed resistance falls to be considered at two levels: (i) is the conflict an armed conflict ? and (ii) is the resort to arms lawful? – Was the conflict in the island an 'armed conflict' or simply an 'internal disturbance'? - Armed conflict recognised by governments - Armed conflict recognised by UN Commission on Human Rights and non governmental organisations – Was Sri Lanka's resort to arms lawful? - Was the conflict an international armed conflict? – Sri Lanka's claim that Tamil resistance was an 'internal disturbance' and was 'terrorism' denied reason and ignored international law – In the end, a need to go beyond law and address the more fundamental questions of morality and humanity
The preamble to the Universal Declaration of Human Rights declared in 1948:
"Whereas it is essential if man is not compelled as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.''
In the years following that Declaration, many a people have been compelled to rebel against tyranny and oppression and armed conflicts have proliferated throughout the world. And, it appears that the art of war has not changed much from the times of Sun Tzu who declared more than a thousand years ago:
All warfare is based on deception.
Hence, when able to attack, we must seem unable;
when using our forces, we must seem inactive;
when we are near, we must make the enemy believe we are far away;
when far away, we must make him believe we are near.
Hold out baits to entice the enemy.
Feign disorder, and crush him.
These military devices, leading to victory, must not be divulged beforehand.
The general who loses a battle makes but few calculations beforehand.
Thus do many calculations lead to victory, and few calculations to defeat: how much more no calculation at all!
It is by attention to this point that I can foresee who is likely to win or lose.
Relevance of Legal Status
Be that all as it may, in the end, the success of a rebellion against alien rule, will be measured by the extent that it secures international recognition. The matter was put somewhat more circumspectly at the Bergen Conference on the Sri Lanka – Tamil Eelam Conflict in 1996:
" In all civil war situations, the government starts with a major advantage in that it has the formal and, at least, initial monopoly on international recognition. In order to challenge the government, a rebel movement must close some of the gap in status and international access."
The question arises: on what is a government's 'formal and, at least, initial monopoly on international recognition' based? It will be idle to pretend that international recognition will not be determined by geo political and strategic considerations.
Said that, there is also a need for political leaders to act (or at least be seen to act) in accordance with international law. The rule of law is the proclaimed goal of all political leaders – without exception. In this way, they seek to gain broad based support for their actions, both within their own countries and outside. Democracy needs to nurture its liberal foundation, if it is to succeed in its advocacy of evolutionary (as opposed to revolutionary) change. And it is here, that the legal status of an armed struggle assumes a particular significance.
Again, the lessons of Vietnam and Algiers have not been lost on Governments that failed to quell liberation movements despite having recourse to superior arms and resources. Michael Schubert writing 'On Liberation Movements And The Rights Of Peoples' pointed out
"The French Chief of Staff Andre Beaufre wrote about his own experience in Algeria and Vietnam in his 1973 German-language book 'Die Revolutionierung des Kriegsbildes':
'The surprising success of the decolonization wars can only be explained by the following: The weak seem to have defeated the strong, but actually just the reverse was true from a moral point of view, which brings us to the conclusion that limited wars are primarily fought on the field of morale.' (p.34)
In order for… states to quickly and effectively wipe out "revolt", which could get out of hand despite technical superiority (read: better weapons) due to the political and moral convictions of the mass movement, it is necessary to make comprehensive analyses early on and to take effective action in the psychological arena. It's no coincidence, therefore, that military and police circles seem to stress the benefits of "psychological warfare".
Ever since the U.S. Defence Department organised the first ever World Wide Psyops Conference in 1963 and the first NATO Symposium On Defence Psychology in Paris in 1960, many NATO leaders and several scientists have been working in the field of psychological counter-insurgency methods (cf. The detailed reports and analyses of P. Watson, Psycho-War: Possibilities, Power, And The Misuse Of Military Psychology, Frankfurt 1985, p.25ff.).
The central aim of this defence approach is to destroy the morale of the insurgent movement at the early stages, to discredit it and destroy it using repressive means like long periods of isolation detention in prisons, thereby preventing a mass movement from starting which could be hard to control with conventional means.
Defaming the insurgents as "terrorists" and punishing them accordingly – thereby ignoring international law concerning the rights of people in war – is a particularly useful means."
It is no accident, for instance, that Sri Lanka and states who are concerned to secure the status quo of territorial boundaries imposed by the old colonial rulers, have chosen to categorise the Liberation Tigers of Tamil Eelam as a 'terrorist' organisation and to deny to the Tamil resistance movement the legitimacy that international law may otherwise accord.
The views expressed by International Alert reporter, Eduardo Marino in 1987 remain valid even today:
"In characterising the Tamil guerrilla, if terrorists are to be called those who have had recourse to terrorist acts, then everyone who has done so should be called a terrorist. It is simply a dishonesty to confine the use of the term – as some newspapers and politicians mainly in Colombo do – to Tamil guerrillas, while remaining silent regarding dozens of officers and hundreds of soldiers and policemen from the Sinhalese community whose acts, over the years, have been well documented."
It appears that the dishonesty of 'some newspapers and politicians mainly in Colombo' also spread to sections of the international community as well. It is therefore not without importance that the legal status of the Tamil armed struggle should be examined in a fair and open way, stripped of propagandist rhetoric.
Legal status of the Tamil armed resistance falls to be considered at two levels
The legal status of the Tamil armed resistance falls to be considered at two levels.
1. Is the conflict in the island an 'armed conflict' within the meaning of the 1949 Geneva Conventions and the Additional Protocols?
2. Is Sri Lanka's resort to arms lawful or is the Tamil resort to arms lawful?
It is important to recognise that the two questions are separate.
If the conflict is an 'armed conflict', then the Geneva Conventions and humanitarian law relating to armed conflicts would be applicable. However, the matter does not end there.
The Geneva Conventions and the humanitarian law of armed conflict regulate the way in which parties to an armed conflict should conduct themselves. The Geneva Conventions are concerned with 'humanising' armed conflict.
The existence of an armed conflict to which Geneva Conventions apply, does not have the result that resort to arms by either party to the conflict is necessarily lawful.
To put it in another way, the fact that the LTTE is a combatant in an armed conflict does not have the necessary result that its resort to arms is lawful. After all, if it were otherwise, the fact that Sri Lanka is a combatant in an armed conflict would render Sri Lanka's resort to arms lawful.
The question whether resort to arms by either party to an armed conflict, is lawful or not falls to be considered under general international law.
Sri Lanka claims that its use of armed force is lawful because it is directed to secure the territorial integrity of an existing state. The Liberation Tigers of Tamil Eelam claim that their struggle is a struggle for self determination and that Sri Lanka's use of force to quell a struggle for self determination is unlawful.
The two principles of international law i.e. the right of an existing state to secure its territorial integrity and the right to self determination of a people, may appear at first sight to be irreconcilable, where a 'people' within the territorial boundaries of an existing state, assert their right to self determination. Admittedly, the question is not without difficulty – but it is a question that cannot be avoided – and must be addressed.
There are several layers to the question. Firstly, there is a need to establish whether the people of Tamil Eelam are a 'people' with the right to self determination. Secondly, if they are such a 'people', does Sri Lanka's refusal to recognise their right to self determination and Sri Lanka's resort to armed force to back that refusal, a violation of the UN charter and the peremptory norms of international law?
Is a state's right to secure its territorial integrity unlimited or is it dependent on that state having recognised the democratic right of self determination of the 'peoples' within its boundaries?
If democracy means the rule of the people, by the people and for the people, then commonsense (and law) may suggest that it also follows that no one people may rule another. A state which denies the right to self determination to a 'people' within its territorial boundaries may be in a position no different to that of the old colonial ruler who denied the right to self determination of the 'people' whom the ruler had conquered.
Was the conflict in the island an 'armed conflict' within the meaning of the Geneva Conventions or simply an 'internal disturbance'?
Let us now turn to the first question. Is the conflict in the island an 'armed conflict' or is it simply an 'internal disturbance'?
Article 1.1 of Protocol II provides that conflicts
"which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol"
are armed conflicts covered by Protocol II to the 1949 Geneva Conventions.
The LTTE is an organised armed group, under responsible command, exercising such control over a part of the island of Sri Lanka so as to enable it to 'carry out sustained and concerted military operations'.
On these facts, it would seem self evident that the conflict between Sri Lanka and the LTTE is an armed conflict within the meaning of the Geneva Conventions.
Article 1.2 of Protocol II to the 1949 Geneva Conventions provides that the
‘Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’
Again, it would seem self evident that the conflict in the island of Sri Lanka, which has admittedly extended for a period of more than 15 years can hardly be described as a riot, or a series of isolated and sporadic acts of violence.
Having said that, the words of Rein Mullerson, Professor of International Law, Kings College, London are not without relevance:
"…(A) difficult question relates to a threshold above which an internal conflict can be considered as such and not as a mere disturbance, tension, riot or other violence not reaching dimensions of an armed conflict. In the eyes of governments which fight against rebels or insurgents the latter are practically always common criminals. Therefore governments often do not recognize that there is an internal armed conflict giving rise to the application of certain international humanitarian norms. Certainly, in the light of Russian law or Sri Lankan law Chechen rebels, and Tamil Tigers are deemed criminals in their respective territories. And these legal systems are not unique in that sense. All states criminalize acts which are aimed at overthrowing existing governments by force. Many of these freedom fighters are criminals under international law as well. Hostage taking and terror tactics used by some of them are clearly contrary to international law. If international humanitarian law extends its protection to them, it also obligates them to comply with its requirements…" - Rein Mullerson, Professor of International Law, Kings College, London in the Journal of Armed Conflict, Volum2, Number 2, December 1997
Existence of armed conflict recognised by governments
In the case of the conflict in the island of Sri Lanka, the existence of an armed conflict has, in fact, (albeit, on occasion) received recognition by governments including those of India, Sri Lanka and the United States.
In 1985, the Indian government recognised the existence of the armed conflict, negotiated a cease-fire and sponsored talks at Thimpu in Bhutan between the Tamil combatants and a specially appointed Minister of the government of Sri Lanka.
Further, the Indo Sri Lanka Agreement signed by the Prime Minister of India and the President of Sri Lanka in July 1987 recognised the Tamil militant movement as 'combatants' in an armed conflict.
And, in 1989/90, the Sri Lanka government recognised the existence of an armed conflict when it entered into a cease-fire agreement with the Liberation Tigers of Tamil Eelam and thereafter entered into direct negotiations with the combatants.
Yet again, in 1995, the Sri Lanka government recognised the existence of an armed conflict, entered into a cessation of hostilities agreement with the Liberation Tigers of Tamil Eelam and engaged them in direct talks.
In April 1997, the United States government recognised the applicability of international humanitarian law to the conflict in the island:
".. We are… troubled by the continuing failure of the (Sri Lanka) armed forces and the LTTE insurgents to capture POWs in numbers commensurate with the scale of the conflict, since it suggests that both sides have adopted a 'take-no-prisoners' policy. We call upon the government and the LTTE, therefore, to observe international humanitarian norms." - Intervention by Head of US Delegation at the UN Commission on Human Rights – Agenda Item on 'Violation of human rights and fundamental freedoms in any part of the world' – 10 April 1997
In February 1999, the U.S. Department of State in its 'Sri Lanka Country Report on Human Rights Practices for 1998' reinforced this view by examining in a separate section, the violations of the humanitarian law in internal conflict in respect of the situation in the island.
And in February 2002, the international community recognised the Norwegian sponsored Ceasefire Agreement which provided for demarcated lines of control for Sri Lanka and the LTTE.
Existence of armed conflict recognised by United Nations Commission on Human Rights and by non governmental organisations
Again, during the past several years, at sessions of the UN Commission on Human Rights and the Sub Commission on Protection of Minorities, several public pronouncements have been made, recognising the existence of an armed conflict in the island, and the applicability of the rules of humanitarian law to the conflict.
In a landmark resolution, adopted unanimously on 12 February 1987, the UN Commission on Human Rights recognised the application of the universally accepted rules of humanitarian law to the armed conflict in the island.
The UN Commission on Human Rights called upon Sri Lanka 'to intensify its co-operation with the International Committee of the Red Cross in the field of dissemination and promotion of international humanitarian law' and invited 'the Government of Sri Lanka to consider favourably the offer of the services of the International Committee of the Red Cross to fulfil its functions of protection of humanitarian standards, including the provision of assistance and protection to victims of all affected parties'.
An year later in August 1988, the non governmental organisation, Human Rights Advocates declared at the UN Sub Commission on Prevention of Discrimination and Protection of Minorities:
"… Mr. Chairman, Human Rights Advocates respectfully urges the Sub-Commission, this session, …. to call on the Government of Sri Lanka to permit the International Committee of the Red Cross to fulfil its functions, including the provision of assistance and protection to victims of all allegations into all allegations of extra judicial killings, disappearances, acts of torture, and unlawful detentions…. "
Five years later, in February 1992, the Chairman of the UN Human Rights Commission reiterated the need for "all parties to respect fully the universally accepted rules of humanitarian law" – rules which are applicable to armed conflicts.
In 22 August 1990, 17 Non Governmental Organisations declared in a Joint Statement at the UN Sub Commission on Prevention of Discrimination and Protection of Minorities:
"In recent months the Sri Lankan government in pursuance of the armed conflict against the Liberation Tigers of Tamil Eelam has engaged in aerial bombardments of the Tamil civilian population and that hundreds of Tamils have 'disappeared' from those areas within the control of the Sri Lankan army. The Sri Lankan army is also engaged in ar