Shenali D Waduge

Today’s wars are not between States. IHL and associated treaties are meant for conventional wars and with terrorism not defined there is a big question mark as to how terrorists are to be charged for their crimes (war crimes and crimes against humanity). The Resolutions and investigation against Sri Lanka inspite of international laws in place has no scope for terrorists and given LTTE is an international proscribed terrorist organization the question is how will an international investigation charge LTTE for its crimes? We are not satisfied to have a Panel declare LTTE guilty on paper with the lame excuse that its Leader is no more. With recent concerns of LTTE raising its head in India, Australia and other parts it warrants for all the nations that continue to maintain the ban on the LTTE to apply universal jurisdiction against all individuals/organizations/fronts/campaigners/fund raisers and even sympathizers (even foreign passport holders) to be investigated and charged for crimes that took place across 3 decades by the LTTE upon innocent civilians in civilian territory and to civilian installations.

Today’s ‘wars’ have been outsourced to groups of people armed to carry out terror. That outsourced terror has spread across the globe and account for 63 countries victims of 560 conflicts all involving militias, guerillas and separatist groups.

AMERICAS:

(5 Countries and 25 between drug cartels, militias-guerrillas, separatist groups and anarchic groups involved)

MIDDLE EAST:

(8 Countries and 180 between militias-guerrillas, separatist groups and anarchic groups involved)

EUROPE:

(9 Countries and 71 between militias-guerrillas, separatist groups and anarchic groups involved)

ASIA:

(15 Countries and 128 between militias-guerrillas, separatist groups and anarchic groups involved)

AFRICA:

(26 Countries and 155 between militias-guerrillas, separatist groups and anarchic groups involved)

(source: wars in the world)

 Each of these groups is tasked to and thrives because of their brand of terror unleashed upon general masses. There is no war zone in which they fight; their military objectives become ordinary civilians and civilian infrastructure. They have become proscribed as ‘terrorist groups’ because of the terror tactics they adopt. Given that Governments have proscribed them why is it impossible to implement ‘universal jurisdiction’ against the crimes they commit within States and extended globally while their ‘organization’ generally has an international nexus and network wherein intelligence of these countries are well aware and share information about their ‘fronts’ disguised behind charity/NGO and humanitarian organizations in order to raise funds and covertly promote the objectives of these terrorists and their ideology.

What is universal jurisdiction : It is the jurisdiction established over a crime without reference to the place of perpetration, the nationality of the suspect or the victim, or any other connection between the crime and the prosecuting State. The aim of universal jurisdiction is that international crimes affect international order and as such offences affect the citizens of every country. Given that LTTE crimes have lasted 3 decades it is perplexing how with tens of thousands of people killed by the LTTE whose dossier of crimes are well documented by foreign governments and law enforcements, why universal jurisdiction has not been applied. When 32 countries have banned LTTE and LTTE fronts that are now declared banned continue to operate in foreign nations it is in the spirit of diplomacy between States that individuals living as foreign nations should be criminally charged by those nations for States can prosecute their nationals for crimes committed abroad and all these pro-LTTE individuals holding foreign passports have aided and abetted LTTE crimes in Sri Lanka over the 3 decades.

If Terrorism constitutes a criminal offence whether it is defined by the UN or not, the fact that anti-terror laws, international counter terrorism laws prevails necessitates the application of universal jurisdiction against these perpetrators because it is often these entities operating from abroad that help raise funds to purchase the arms and equipment to carry out a protracted terror offensive against sovereign states.

LTTE’s terrorism is nothing the world did not know about. The world knew that LTTE targeted civilians. LTTE violated Additional Protocols to the Geneva Conventions that prohibits acts aimed at spreading terror among the civilian population. What was done against LTTE’s ‘acts of terror’? These acts had no military advantage except to create mayhem.

With Sri Lanka’s conflict defined as a non-international armed conflict, we would like to know exactly how LTTE followed its IHL obligations?

a)   Did LTTE respect and ensure respect for IHL by all those acting on its instructions, or under its direction or control

b)  Did LTTE allow and facilitated rapid unimpeded passage of humanitarian relief

c)   Did LTTE keep hostages – a violation of Geneva Conventions

d)  Did LTTE keep human shields – a violation of Geneva Conventions

e)   Did LTTE blur distinction between combatant and civilian

What needs to be said is that inspire of LTTE being called ‘freedom fighters’ ‘terrorists’ or otherwise and it does not have any status under IHL, the LTTE does have LEGAL obligations as an armed group and an armed group in an armed conflict has obligations to ensure its members respect IHL at all times. The question is how will the Panel recommend upon the conclusion of its investigation to press criminal charges against LIVING LTTE members without excusing LTTE as now dead.

It must also be noted that LTTE cadres or captured enemy fighters are NOT considered prisoners of war. In non-international armed conflicts, LTTE can be prosecuted for even taking up arms. (Prisoner of War is a special status given under Third Geneva Convention to captured enemy soldiers ‘combatants’ in international armed conflicts ONLY.

While IHL asks governments to grant broadest amnesties at the end of an armed conflict what has IHL done in terms of justice for the dead civilians over 3 decades in Sri Lanka. At every turn LTTE – the killing force that is armed and trained and the sponsoring force comprised of Sri Lankan, Sri Lankans holding foreign passports, foreigners have been aiding and abetting terror acts over the years completely escape investigation and charges for their crimes.

There are guidelines available to press charges. The EU’s Framework Decision on Combating Terrorism as well as the 2001 Security Council Resolution 1373 is what Sri Lanka has applied on over 400 individuals and organizations of late. While Sri Lanka has applied 1373 Resolution it is of concern what foreign nations have done to compliment this by freezing the financial assets of these named LTTE fronts as well as investigating all those associated and holding portfolios in these now banned organizations? What we now need with the ground terror of LTTE no more is for the peaceful elimination of terrorist sponsors and organizations camouflaged as peace doves! These same organizations have covertly aligned themselves to entities attempting to forge regime change in order to enable them to remain unexposed and protected.

The proscribed entities listed in the Gazette consist of the main LTTE and 15 other alleged front organizations of the tigers.The proscribed organizations are as follows- 

01. Liberation Tigers of Tamil Eelam a.k.a LTTE a.k.a Tamil Tigers.

02. Tamil Rehabilitation Organization a.k.a TRO.

03. Tamil Coordinating Committee a.k.a TCC

04. British Tamil Forum a.k.a BTF

05. World Tamil Movement a.k.a WTM

06. Canadian Tamil Congress a.k.a CTC

07. Australian Tamil Congress a.k.a ATC

08. Global Tamil Forum a.k.a GTF

09. National Council Of Canadian Tamils a.k.a NCCT a.k.a Makkal Avai

10. Tamil National Council a.k.a TNC

11.Tamil Youth Organization a.k.a TYO

12. World Tamil Coordinating Committee a.k.a WTCC.

13. Transnational Government Of Tamil Eelam a.k.a TGTE

14. Tamil Eelam Peoples Assembly a.k.a TEPA

15 .World Tamil Relief Fund a.k.a WTRF

16. Headquarters Group a.k.a HQ Group

 According to authoritative sources the organizations listed as suspected terrorist entities functioning on foreign soil fall under four broad categories reportedly under the overall control of four key individuals.

 They are the organization/s under-

1. Perinbanayagam Sivaparan alias Nediyavan”;

2. Rev.Fr. SJ Emmanuel

3. Visuvanathan Ruthirakumaran

4. Sekarampillai Vinayakamoorthy alias Vinayagam

It is strange that the GOSL has omitted the wife of Anton Balasingham who was the head trainer of the LTTE female suicide cadres where not only did she train children to kill she gifted each with a cyanide capsule and ordered them to commit suicide. Taking one’s life is a criminal offence and charges need to be pressed against her while she lives comfortably in the UK. Legal luminaries (both in Sri Lanka and overseas) should offer pro bono legal counsel for the families of these children who perished under her orders.

 LTTE ban

• 1992 – India was the first to ban LTTE following the assassination of Rajiv Gandhi.
• 1997 ” USA banned LTTE as a Foreign Terrorist Organization on 8 Oct 1997 and
• 1998 ” Sri Lanka bans LTTE following LTTE attack on Dalada Maligawa, Kandy
• 2000 ” UK designated LTTE as a Proscribed Terrorist Group under the UK Terrorism Act of 2000
• 2001 ” USA designated LTTE as a Specially Designated Global Terrorist organization since 2 Nov 2001
• 2006 ” EU (Council of the European Union) comprising 28 nations declared LTTE as a Terrorist Organization on 17 May 2006 (Austria, Beligum, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemberg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden & UK
• 2006 Canada
• 2009 ” Sri Lanka 7 January 2009  (Note the ban placed in 1998 was removed by the Ranil Wickremasinghe Government on 4 January 2002 to facilitate the infamous Ceasefire Agreement)

 Sri Lanka is not as powerful as US or Israel to declare that they would authorize and use ‘all necessary force’ against nations, organizations or persons they deem as carrying out terrorist attacks. This self-declared authority gave right to US to military intervene in numerous nations without even the mandate of the UN and continue to occupy these nations using scores of reasons to doing so. No UN treaty nor US Secretary General can remove US troops from the countries they are now deployed in. The US ‘war on terror’ has given it all jurisdictional rights of a state at war without a state actually declaring war against the US.

The US, UK and powerful nations do not need universal jurisdiction. They just kidnap people from anywhere in the world and fly them to undisclosed destinations where legal counsel and access to families are also denied. In most cases they simply disappear from the face of the earth!

However in 2013, the US indicted 3 foreign nationals in a Federal District Court for plotting suicide bomb attacks. It is a unique case because the 3 foreign nationals (2 Swedes and 1 British) were captured by an African government while on their way to join al-Shabab, the Somali Islamist group. The 3 had not planned to target US nationals, or facilities or had ever been to the US but the US prosecuted them for their participation in a foreign civil war. If the US could use Article 1 giving Congress the power to punish entirely foreign conduct with no US nexus surely LTTE fronts can be taken and tried in the same way!

The 3 foreign nations were charged under ‘material support for terrorism’ 18 USC 2339B. Why can the same not be done to LTTE remnants, LTTE sympathizers, LTTE fronts overseas that can be complimented under the Define and Punish clause with the law of nations? Why can these LTTE ‘members’ not be charged as co-belligerents?

What our main concern is that the world watched LTTE murder civilians for 3 decades. Their solution was for Sri Lanka to indulge in peace talks, negotiations, ceasefires. None of these solutions stopped a single murder. The bulk of LTTE’s crimes were committed outside the war theatre and specifically targeted against civilians disguising themselves as civilians. These are all criminal acts. The previous Governments and their lethargic officials are to be blamed for not exploring all legal and international avenues to hold LTTE sponsors to task. The eventual option taken was to militarily defeat the LTTE and this has saved 20million people from mental trauma of not knowing if they would return home. The mental satisfaction for 20million people could not be matched by any initiative of the international community to date.

Now with a useless investigation covering just 7 years of a 30 year killing era by LTTE and with the loopholes that will obviously let LTTE off the hook and attempt to charge only Sri Lanka’s leaders and armed forces, it is time for legal luminaries both in Sri Lanka and overseas to see how best they could put their knowledge in how to deal with entities like the LTTE where their brand of terror is controlled from overseas and where the controllers remain still at large assisted by their local puppets, unpunished and conniving further chaos.