By Rajan Hoole –
The Rise and Fall of the Tamil Militancy and the International Legal Implications of the Government’s Counter-Insurgency – Part 4
In late 1984, India, which was helping the Tamil militant groups, was in a position to bring the conflict to an end, had the Sri Lankan Government come up with an adequate political arrangement. But the Government was still talking about cosmetic variations on the District Development Councils of 1981, which had been thoroughly discredited by its intemperate actions at their very birth. Moreover, India was far from hostile to Sinhalese interests. Only, the wisdom to deal with India advantageously was lacking. Mr. R. Sampanthan recalls Mrs. Indira Gandhi telling the TULF leaders, “I will help the Tamils, but I will not harm the Sinhalese.”
By escalating the conflict instead with projects like ‘Weli Oya’, which quickly led to mass killing, the Government was inadvertently moving the ethnic conflict into a legal status, which it badly wanted to avoid. There are two Protocols of 10th June 1977 additional to the Geneva Conventions of 12th August 1949. Protocol II relates to Protection of Victims of Non-International Armed Conflicts, such as ‘which take place in the territory of a High Contracting Party (i.e. the Sri Lankan State) between its armed forces and dissident armed forces or other organised armed groups,…which exercise control over part of its territory…’ It forbids collective punishment, acts of terrorism and reprisals.
Article 17 of Protocol II stipulates in Paragraph 2 that ‘civilians shall not be compelled to leave their own territory for reasons connected with the conflict’. Paragraph 1 allows for ‘displacement’ with satisfactory relief measures only when the security of the civilians is involved or for ‘imperative military reasons’. Such displacement must of necessity be temporary. It certainly does not allow for the forced evacuation of civilians in order to introduce those of a different ethnicity.
After what it did in Weli Oya the Sri Lankan Government has to this day been in flagrant breach of Article 17. This Article is characteristic of Protocol II which is quite restricted in scope since it does not envisage a situation of total war, in which the position of civilians is far more hazardous. This is in contrast to Protocol I, which relates to International Armed Conflicts. The restrictive nature of Protocol II is found in another provision, which occurs in Protocol I, but is not envisaged in Protocol II. This is Paragraph 7 of Article 51 of Protocol I on the ‘Protection of the Civilian Population’. It reads, “…the parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objects from attacks or to shield military operations.”
This is what the Government has done with the Sinhalese population in Weli Oya. From 1986 another element of escalation entered into the conflict. This was the use of bombing and shelling whose effect was often indiscriminate. This is prohibited in Paragraph 5 of Article 51 in Protocol I, but is again not envisaged Protocol II. To be clear, Paragraph 5(b) defines as indiscriminate: ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’
Such attacks by way of bombing and shelling by the Sri Lankan forces have been common since 1986 and very often they were by way of reprisals, and were intended to terrorise, but with no concrete military advantage in view. Although there were no direct implications from current international law, it placed the Government in an awkward position. World opinion was bound to be influenced by the fact that the methods and fall-out from the internal conflict were inordinately severe. More so, because its nature and magnitude were not accounted for in Protocol II, but rather in Protocol I dealing with International Armed Conflicts. Among the situations covered by Protocol I are (Article 1, Paragraph 4) ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination, as enshrined in the Charter of the United Nations…’
The last is precisely what the Tamil nationalists have being saying the struggle is about, almost from the time of independence from Britain. It is a position that any Sri Lankan Government would fight tooth and nail not to concede. Then it should have been all the more careful not to concede through methods of warfare and expulsion of civilians, the very same that it would be loath to concede in law. International law too changes with perceptions and having a certain position accepted depends on effective lobbying. After all, in the late 1940s the right to self-determination was seen to apply only to peoples under colonial rule. There was a shift to a more open position by the time the International Covenant of Civil and Political Rights came into being in 1966. Part I of Article I of the ICCPR states:
“All peoples have the right to self- determination. By virtue of the right they freely determine their political status and freely pursue their economic, social and cultural developments.”
The late Martin Ennals, the well-known scholar and Human Rights activist had noted, “It is a right which creates expectation without fulfilment. People are dying for a right which is known to exist but nowhere defined”. That situation is bound to change through sheer necessity. It will depend on the conduct of governments as well as rebel movements.
If the Sri Lankan Government had persisted in its refusal to concede autonomy to the Tamil- speaking region, there is a very good chance that the Tamil case would have gained wide acceptance even in the light of existing international law. It had however, one big liability – the Liberation Tigers of Tamil Eelam. Its leader V. Prabhakaran signed Protocol II in 1988, as revealed by copies widely circulated among international human rights organisations. This was when his movement’s prospects were at low ebb. It was a trade-off where he gained a certain international status in return for his willingness to abide by several humanitarian restrictions. These include ‘refraining from acts of terrorism; murder, torture and any form of capital punishment; and the use of children as combatants’. These have been breached with such shocking blatancy even against the LTTE’s own people that it stands no chance of being recognised as capable of giving substance to the Tamils’ right to self- determination.
Coming back to the point we were trying to make: a small country like Sri Lanka does immense damage to itself by escalating a conflict when there were alternatives available. It is moreover hardly surprising that the same class behind the ideology of escalation also produced the arms brokers, several of whom were close to the President’s family and his own staff, who creamed off a tremendously increased defence budget – about 25-30% of the total. President Jayewardene after all conceded in the Indo-Lanka Accord of July 1987 what he had refused four years earlier, by which time the LTTE had acquired a tremendous wrecking capacity by being able to enforce any degree of destruction with impunity on an unwilling Tamil populace.
By the distinct qualitative change which military-led demographic transformation brought to a local conflict by its inherent nature, and the legal boundaries it transgressed, Weli Oya marked an alarming escalation of the conflict after the violence of July 1983. It placed Sri Lanka in a very difficult position internationally, creating the conditions for mute worldwide acceptance of Indian intervention. This is the real contribution made to Sri Lanka’s sovereignty by the company around Ravi Jayewardene, S.L. Gunasekera et al.
To be continued..