Shenali D Waduge

 LTTE is a non-state armed actor. Sri Lanka’s conflict is categorized as a Non-International Armed Conflict. LTTE has been proscribed by 32 nations including US, UK, India, EU & Canada as an international terrorist organization and that ban remains active despite the LTTE’s leadership and ground force being militarily annihilated. With no valid evidence to ascertain any homeland that existed for Tamils either by LTTE or the Tamil politicians towing the same line, the resulting option has been to destroy the historical and cultural evidence that prevailed to ascertain that the Sinhalese had been very much living in the North where Buddhist monasteries, temples, inscriptions and various other artefacts prevail. However, much of these have been purposely and calculated destroyed. We must be grateful for late Minister Cyril Mathew who had submitted an excellent report detailing some of these sites and also providing evidence of the destruction. Therefore, why has the OISL not included the destruction of cultural heritage by LTTE into their report?

 

Not many countries in the world can boast of civilizational history and ancient heritage sites and artefacts that Sri Lanka possesses. The manner that Iraq, Libya etc have had National Museums and artefacts looted is a shocking reminder of what these non-state actors are capable of doing and these are calculated destructions to promote their ideology and lay the foundation for the eelam that is being promoted.

 

Emer de Vattel has beautifully summed up whatever cause a country be devastated, these buildings should be spared which are an honour to the human race and which do not add to the strength of the enemy, such as temples, tombs, public buildings and all edifices of remarkable beauty. What is gained by destroying them? It is the act of a declared enemy of the human race thus wantonly to deprive men of these monuments of arts and models of architecture.”

 

However, Vattel acknowledged, that these cultural edifices could be destroyed if so dictated by the necessity and maxims of war’ – The Sri Lankan Army had every right to destroy the eelam emblems that existed.

 

Stanislaw E. Nahilik The human individual is mortal and generations follow one upon the other. It is nevertheless possible for every generation, however fleeting its existence, to leave here below an immortal trace of its genius, embodied in a work of art here, an historical monument there or cultural property in another case. We should never forget the relationship between what is fleeting and what, alone, can endow people and their works with perennial qualities. Vita brevis—Ars longa”

 

As UNESCO’s Director-General noted, culture and heritage are not about stones and buildings—they are about identities and belongings. They carry values from the past that are important for the societies today and tomorrow. . . . We must safeguard the heritage because it is what brings us together as a community; it is what binds us within a shared destiny.”

 

http://www.lankaweb.com/news/items/2016/04/26/unp-mp-cyril-mathew-report-to-unesco-proof-sinhalese-were-living-in-the-north-before-tamils/ – not only showcases Sinhalese were living in the North before Tamils but lists out scores of heritage sites and questions how many of them still remain or have been purposely destroyed by LTTE and Tamil separatist politicians to erase the argument of Sinhalese rights to the North and East.

 

The laws in place

§  The 1899 Hague Convention with Respect to the Laws and Customs of War on Land was [t]he first formal international treaty providing some protection for cultural property.” Articles 28 and 47 prohibit pillaging, and Article 56 provides that all property of the arts and sciences will be treated as private property and that the seizure or destruction of such property is prohibited

§  1907 Hague Convention provided for the protection of buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected . . . .”

§  1899 and 1907 Hague Conventions were the first international treaties addressing cultural property protection, the catastrophic destruction in World War I and World War II exposed the weaknesses of the Conventions and illuminated the need for stricter prohibitions against the destruction of cultural property.

§  In 1950, UNESCO’s Director-General held a meeting of experts to prepare a draft convention on the protection of cultural property in the event of armed conflict.” The draft resulted in the formulation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Regulations for the Execution of the Convention

§  The Second Protocol also clarifies the instances in which individuals can be prosecuted for harming cultural property. Article 15 defines five acts against cultural property that require criminal sanctions, and Article 16 requires parties to establish them as criminal offenses under their domestic law

§  Article 19 of the Convention and Article 22 of the Second Protocol provide that the Convention will be applicable in non-international armed conflicts (Sri Lanka’s case) Article 19 in particular indicates that the Convention could be interpreted as applying to non-state actors

§  Article 22(1) of the Second Protocol expands the scope of application in non-international armed conflicts by stating that all of the provisions of the Second Protocol will apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.”

§  adoption in 1999 of the Second Protocol to the 1954 Cultural Property Convention which applies in its entirety to both IAC and NIAC

 

While Covenants and Protocols may apply to non-state actors given that they are not signatory to them the question of applicability of these laws is raised.

 

This is answered in the Vienna Convention on the Law of Treaties addresses the application of treaties to third parties. Articles 34 through 36 provide that a treaty can create obligations for a third party if two conditions are met: 

§  the contracting parties must have intended the treaty to grant such rights or impose such obligations on third parties”; and

§  a third party must accept the rights or obligations.”

 

Article 19(1) of the Hague Convention states that each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention.” (this includes both parties)

 

The summary report from the Second Protocol convention indicates that the contracting parties intended the Protocol to apply to all parties in a noninternational conflict, whether state parties or non-state parties. However non-state actors is bound by customary international law. Customary international law will bind non-state actor groups even if the non-state group has not formally accepted the obligations created by the international law

 

Key provisions of the 1954 Hague Convention are regarded as having achieved customary international law status are

·         Article 4 (which obliges parties to refrain from attacking cultural property unless required by military necessity and to prevent all theft, pillage, or vandalism of cultural property)

·         Article 19 (which applies the Convention to non-international armed conflicts) are now considered to be part of customary international law.

 

By virtue of LTTE being signatory to the 2002 Cease Fire Agreement wherein territory was declared under LTTE rule, LTTE is bound as a party to the conflict and therein responsible and accountable for a host of violations its leadership, its supporters have all committed.

 

What is shocking is that the aspect of Cultural Property and its destruction by separatist elements in Sri Lanka have gone unnoticed and unaddressed. This is crucial because the destruction of ancient sites and artefacts are directly linked to the key argument of homeland and self-determination being sought. You would notice that the Northern Province Chief Minister is frequently and consistently asking for history to be written? Why is he doing this? It is because the main objective is to craftily remove the presence of the Sinhalese from the North out of history as well as the fact that it was the Malabar Tamils from Tamil Nadu who were brought to work as slaves many centuries later.

 

It is to fulfil this goal that the Prime Minister is attempting to step up a new Institute of History where parties that wish to remove the Sinhalese presence in the North out of the history books will be tasked and well-funded to meet this objective. This is a very cunning, devious and a very deceitful slap to history and totally negates the duty of states and international bodies to protect and preserve ancient history. Today’s politicians have no business to be re-writing history to advance their personal ideologies. Such attempts need to be brought into the open and stopped before they get off the ground especially the new Institute of History (or whatever other name they will call it)

 

Legislation must be introduced to make it an indictable crime to change the history of Sri Lanka and deny the cultural heritage and history that has been part and parcel of what our national identity is all about. No later day arrivals have any right to be changing the history to meet their selfish agendas. The patriotic organizations and patriotic historians must do their duty by the country and come forward to nullify these attempts by showcasing the correct history to the world and placing these ancient sources into a document that the country can defend its historical cultural heritage in the event that attempts are being made to rewrite history.

 

LTTE by virtue of controlling a large part of State land has to be held accountable for all the destruction of ancient sites and artefacts that have taken place while other groups like Christian/Catholic churches, mosques and kovils also stand guilty of destroying ancient Buddhist sites and then building their religious monuments/prayer centres on top of them. These are all violations of customary international laws, international covenants and common decency. These acts do not show any signs of the reconciliation that is being preached by these very parties.

 

Shenali D Waduge

Source:

http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_SECTION=201.html

https://www.icrc.org/en/war-and-law/conduct-hostilities/cultural-property

http://www.lankaweb.com/news/items/2016/04/26/unp-mp-cyril-mathew-report-to-unesco-proof-sinhalese-were-living-in-the-north-before-tamils/