KAMALIKA PIERIS

The Eelam wars (1983-2009)  between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE), arose over the issue of self-determination for Sri Lankan Tamils and the separation of the Northern and Eastern provinces from the rest of the country. The goal was a separate state.

 The Eelam war was not a guerilla or terrorist war, it was  a Civil War. Civil War takes  place when  a group of citizens take up arms against the government to obtain exclusive control of a part of  the land. The fighting takes place inside the state, in the territory which is to be separated from the rest of the state. It is  war between  the  state  and a group of  citizens  who  want to secede from the state, taking a slice of territory with them.  A civil war is  therefore an internal war. A civil war can become  a high-intensity conflict   if  the    state army  faces  a  well equipped rebel army. Civil war  could  be caused by  outside forces manipulating a separatist tendency within the  targeted territory.

The Geneva Conventions do not provide a definition of Civil War. The Final Record of the Diplomatic Conference of Geneva of 1949 (Volume II-B, 121)  instead  introduced the concept “Non-international armed conflict” .    Geneva  Conference said that for  “Non-international armed conflict”     the party in revolt must be in possession of a part of the national territory. The insurgents  must exercise de facto authority there .The insurgents must be  belligerent and the legal government  must  conduct  military action   against the insurgents.

Common Article 3 of the 1949 Geneva Convention  also   used the term “Non-international Armed conflict”   instead of Civil War,  when speaking of  an  armed conflict between the state and non-state  groups  .The term “non-international armed conflict”   was   widely used  thereafter to refer to  Civil War because   it is the term used in Common Article 3 .

International Committee of the Red Cross, however,  recognized ‘Civil War’ and said that  for a civil war to take place, the party that is opposing the government  must possess an organized military force, it must have a central authority ,it must be in possession of  territory and  be waging war from inside it.

 Analysts and commentators studying the Eelam War use both  Civil War” and “Non-international armed conflict”   to describe the Eelam War. Legal commentators   take the position that  the  Eelam war is a non –international armed conflict.”  The conflict in Sri Lanka is a non –international armed conflict,   they  said.   

Others call it a Civil War. S.I. Keethaponcalan  in Post war dilemmas of Sri Lanka  (2019) said  Eelam war is a civil war it is between a sovereign state and a non-state armed group. It was a domestic war.    Nithyani Anandakugan  titled her essay in   Harvard International Review . August, 2020 as The Sri Lankan Civil War and Its History Revisited”.  

However, some  commentators reject the notion that the Eelam War was   Civil war. They argue that this was Non-International Armed Conflict  certainly ,but not amounting to Civil War .The reason was that  the  LTTE  killed  its own kind. LTTE killed many  Tamils. Does that qualify for the war   to be called civil”,  asked one observer. The answer is that   LTTE killed in  order to gain power and thereafter to  retain power. There was no protracted internecine war.

 This  anti-Civil war  attitude is based on the romantic notion that Civil War is between two  deeply united  factions spontaneously  opposing each other. They are thinking of  the  American Civil War  where the pro slavery ‘Union ^‘  and the  anti slavery ‘Confederacy ‘ fought each other, we imagine, in deep unity.

The separatist  intention is clearly shown in  Tamil politics. Illankai Tamil Arasu Kadchi, established in 1949 ( ITAK)  indicated through its name that   it was set up for the creation of an independent state. IIllankai Tamil Arasu Kadchi, means  Lanka Tamil State Party.” The word  ‘Arasu ‘ can be interpreted as ‘king,” “ruler,” “monarch,” or “sovereign”, said the dictionary. The word carries connotations of authority . Kadchi means ‘party’ . ITAK said that its name in English was ‘Federal Party’. That was to  hide its separatist  strategy. The Tamil word for federal is Kūṭṭāṭci” .

 The    militant groups  formed in the north in the  1970s were also separatist .  They   all wanted Eelam. The names   of the  five leading  groups were: Eelam People’s Democratic Party (EPDP).Eelam People’s Revolutionary Liberation Front (EPRLF),  Eelam Revolutionary Organisation of Students (EROS)  Liberation Tigers of Tamil Eelam (LTTE)  People’s Liberation Organisation of Tamil Eelam (PLOTE),  and Tamil Eelam Liberation Organization (TELO). 

However,  the Government of  Sri Lanka    did not  officially declare the Eelam war as  Civil war or  Non international Armed Conflict.   The  Government    called  the war a ‘terrorist’ war. Government  says there is no ethnic problem but only a terrorist problem, noted Ben Bavinck. [1]

The Military also spoke of the  enemy as terrorists.  Ours was a war waged against a terrorist outfit by a legitimate government, said  Sarath Weerasekera.[2]  The  memoirs written by the miliary leaders, such as the memoir by Kamal  Gunaratne,   always  spoke of  ‘terrorists’. The soldiers were also told that they were fighting terrorists, whom they called  ‘terra”.

When the War ended in 2009, President Mahinda Rajapaksa  went to Jaffna, spoke in Tamil and  said the war was against ‘Terrorism’ and not the ‘Tamil people.’  In 2019, Sri Lanka‘s High Commissioner for UK, said the conflict in Sri Lanka was not with the Tamil community, but against terrorism by the LTTE.[3]  

In 2020, Sri Lanka’s Permanent Representative to the UN,  speaking at the Security Council Open Debate on Peace building, said that action by the Sri Lankan security forces during the conflict was against a group designated as a terrorist organization . It  was not aimed at any community in the country.[4]

However, Shenali Waduge  observed that the UN   never officially designated the LTTE as a terrorist organization  . UN declared  Al Quaida and Taliban terrorist organizations  through Resolutions 1267 and 1373,[5] but not LTTE .

There is no  agreed definition of terrorism.  Violent and criminal acts planned for a political or ideological purpose are  considered ‘terrorism’.    Terrorism    thrives on the creation of fear  and intimidating the public.   

The Tamil Separatist Movement did not like the label of ‘terrorist.’ When  Anne Abeysekera visited Jaffna in 1994   she was asked,  Why  does your President say there is no ethnic problem , only a terrorist one. [6] LTTE also  objected.  LTTE  has said repeatedly that they were not terrorists. LTTE  was not interested in  merely  frightening  the public. LTTE never limited itself to hit and run tactics.  LTTE‘s mission was Eelam, nothing less.  They were fighting a separatist war.

 LTTE has continued to say this. The European Political Sub division of the LTTE ,  based in Denmark, appealed in January 2019  to  the European Union   asking the EU to lift the proscription of the  LTTE as an international terrorist organization.

LTTE stated that  it  had  participated in a legitimate armed conflict with the aim of ensuring the right of the Tamil people to self-determination. They were not a terrorist organization . EU agreed. The way LTTE’s armed forces were organized and their manner of conducting operations, met all the requirements laid down by international law for recognition as ‘combatants’, said EU, while extending the proscription.

The Eelam war was never  a terrorist war.   LTTE   engaged in regular  military warfare using modern weapons. It had a trained army, dressed  in uniform. It attacked the state army where ever it could and concentrated on taking  territory.       Dayan Jayatilleke  observed  that  LTTE was not a terrorist cell, or a branch of an international terrorist network,  It was a secessionist army. [7]

In his   Heroes Day speech of November 2002, Prabhakaran said If self-determination is denied and the demand for self-rule is rejected, the Tamil people will have no alternative other than to secede and form an independent state.

HL de Silva  in  his book Sri Lanka a Nation in conflict” , discussed  the issue of secession. He stated that  two UN  declarations, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations”(1970) and  ‘World Conference on Human Rights,’ Vienna, 1993  confirmed  that a state whose government represents the whole people, is entitled to the protection of its territorial integrity. Sri Lanka conforms to this and therefore Sri Lanka can resist secession, he said.

H.L. de Silva  stated that Sri Lanka could not entertain secession in any form. Sovereignty of the people is inalienable.  Any surrender of   an inalienable right is an act that is legally null and void. The people of Sri Lanka do not have the freedom to decide on separation.  They  cannot consider secession either.  A sovereign  people cannot pass laws  affecting sovereignty.   

They cannot break up a country through a referendum  either, they do not have that right, continued H.L .de Silva.   Nor can they do so through Parliament  or a Constituent assembly.  These two bodies do not have the legal power to tamper with   Sovereignty. They  cannot support the truncation of a state.

H.L.  de Silva  stated that the Constitution of Sri Lanka  does  not permit separatism.   The first five articles of the Constitution are basic political values which are not created or conferred by the Constitution. They are pre-existing values which precede and transcend the Constitution. The  Constitution does not permit any ethnic group to declare that they no longer owed allegiance to state either ,  he said.

The five articles of the Constitution are: 1 Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic 2 The Republic of Sri Lanka is a Unitary State. 3  Sovereignty  is  in  the People and is inalienable. 4 Sovereignty of the People shall be exercised as follows legislative-  Parliament,  executive – President ,  judicial  -courts. 5 The territory of the Republic of Sri Lanka shall consist of the 25 administrative districts set out in the First Schedule and   its    territorial waters. 

HL de Silva said these matters are declared in the Constitution to enable the Constitution to be under stood as a legal document   and to ensure that what follows does not violate these basic principles. And that they are interpreted in the light of these principles. They are eternal , they cannot be disputed and cannot be compromised by understanding reached by negotiators or anybody else.  

H.L. de  Silva  stated that Section 27/3 of the Constitution says the State shall safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka. Section  157A says (1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.(2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

Further, the 6^th amendment  to the Constitution expressly prohibits  a  person or political party  from promoting  a separate state within Sri Lanka . [8]  The 6^th amendment states (1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

 The Penal Code  is  also very  clear on this matter. Whoever wages war against the Republic, shall be punished with death, or imprisonment said   Section 114. It  is an offense to deprive the People of the Republic of Sri Lanka of their Sovereignty  or  conspires to overawe by means of criminal force any of the organs of Government said  Section 115 . It is  an offense  to collects men, arms, ammunition, or otherwise prepare to wage war against the Republic ( Section 116),  to conceal the existence of a design to wage war against the Republic ( Section 117) or attempt to excite feelings of disaffection to the Government  (Section 120).

LTTE   was attempting to  overthrow a  legitimate   government which  had a strong presence in the north and east. An  attempt to overthrow  a government is  considered ‘treason.’ Taking arms against the state   is  considered ‘high treason’,   a criminal act of the highest order. The demand for the creation of a separate state should   be treated as high treason with penal sanctions, said anti-Eelamists.  The demand for self determination must also be made a criminal offence. It is intended to lay the foundation for a separate state they said.   Tamil Separatist Movement ‘s    declaration  that it is also for an undivided Sri Lanka is  made  to avoid the charge of treason.

This brings us to the  matter  of Sedition. Any conduct or  speech   inciting people to rebel against the authority of a state  is considered sedition. Any   party demanding self determination or separation can also  be treated as sedition.

Critics wants to know why there is no law against sedition in Sri Lanka. In the west, countries  have enacted  laws against sedition.   The government should pass a Sedition act to charge and prosecute any one supporting separatism, said Rohan Guneratne. [9]   Sri Lanka  Parliament must pass legislation spelling out what would constitute sedition. 

On May 21, 1976  ITAK leader A.  Amirthalingam, along with Federal Party MPs  V.N.Navaratnam, K.P.Ratnam, K.Thurairatnam  were delivering leaflets in Jaffna , regarding a political event, when  they were  arrested by the Jaffna police on the charge of possessing and distributing seditious literature. Sivasithamparam was released but the others were taken to Colombo  to be tried for sedition.

When the case came up on  December 10, 1976, Attorney General Siva Pasupati   said that  the Government will not be proceeding  with the case against the four FP leaders relating to the possession and distribution of seditious literature.  After retirement, Pasupati moved to Australia and served as a legal advisor for the LTTE .[10]

Separatism has to take into account the provisions of International law. International law does not support separatism. There is no legal right in international law for a sub national group of a sovereign state to   achieve unilateral secession by wresting territory from the state, said HL de Silva.In  the case of Quebec the law courts ruled that    Quebec did not enjoy a right in international law to secede from Canada unilaterally.  

But it is possible  for the separatist state to obtain recognition if the government concerned does not  fight the secessionists successfully, observed HL de Silva.    Once a secessionist movement  succeeds in defeating the armed forces of a state and is in occupation and control of territory, leaving no room for government to operate inside it,   there comes into existence a de facto  separate state ,  which can then advance to becoming a  de jure state, with help of other countries.

 UN is extremely reluctant to admit a seceding entity to membership against the wishes of the government of that state. But it can  be achieved by a  friendly country nominating the new state to the UN General Assembly, said analysts.

Since the  first step toward the creation of statehood  is   control of territory by a rebel group, itis up to the  government   to make  sure that that does not happen. It is up to the state to ensure  that secession is not successful,  said HL de Silva.  Sri Lanka has a long tradition of achievement which would help provide enormous reserves of inner strength and moral courage to withstand Eelam, concluded HL de Silva. [11]

 The Eelam wars were defeated by the government of Sri Lanka in May 2009. Nirmala  Chandrahasan said that the Tamils must start all over again. I do not think that Tamil nationalism with secessionist aspirations, will die a natural death. Even if the LTTE is destroyed , it is possible that a new guerrilla war could emerge in a few years time. [12]

 A.K. Ragavan, a Tamil activist now in UK stated in an interview in 2009  ,  we need to look at this differently. This nationalist framework will only alienate people further. Tamils constitute only  12 % of Sri Lanka  population Without the support of the Sinhala progressives Tamils cannot take their struggle forward anymore. [13]

Sebastian Rasalingam said ‘Eelam program was doomed to failure within the confines of an island dominated by a majority which had always has a historic sense of its own identity, and ancient chronicles to give the needed patriotic cohesions. The Mahavamsa mind set. But the Eelam idea is too big and too potent to be confined to the shores of Sri Lanka. So it may be transferred to Tamilnadu.[14]

 Sri Lanka is quite the last place in the world to strive for Eelam  or an approximation because the game here is zero-sum due to the uniqueness of the Sinhala situation. Here Tamil globalism meets Sinhala exceptionalism, said Dayan Jayatilleke in 2018.[15]Sri Lanka is  too small an  island  to have two separate governments, said Kanthar Balanathan in  2023. Jaffna has no river or water and 49% of Tamils live outside the North and East. [16]

Tamil diaspora should abandon its separatist ideas said Kumaran Pathmanathan   in 2021. I have tried to explain to them that the era led by Prabhakaran and Pottu Amman is no more. It is impossible to formulate another armed struggle in this country. Pursuing such an ideology is a waste of time.[17] There will never be a separate state in Sri Lanka. Even the most vociferous Tamil politicians in Sri Lanka too have categorically rejected the idea said  a Daily News  editorial in 2021 .[18]

LTTE was    engaging in  civil war in a country with a strong central government , firm  sovereign standing and strong historical recall. Sri Lanka, real name Sinhaladvipa, is a recognized sovereign state with clear boundaries, settled population, a seat in the UN and a well documented history. Sri Lanka is the oldest and longest running democracy in Asia, having had universal suffrage thrust on it, while it was still a British crown colony. The first election was held in 1931, l two decades before India.  Sri Lanka  is considered  a resilient  country.

In contrast to this, Eelamists argue, without any evidence, that  ancient Sri Lanka  consisted of  two nations, Tamil and Sinhala .They argue that   the sovereign state was a modern invention, introduced to Sri Lanka  during western rule,  due to the Westphalia treaty of 1648. That is incorrect ,  also it is a calculated distortion of the  well documented history of  Sri Lanka .( see note below)[19]

Sri Lanka  enjoyed continuous monarchical rule for a long unbroken period ending  in 1815. Monarchical  states are sovereign states. They pre-date the democratic state, but they are  nevertheless,  sovereign states. This means Sri Lanka has been a   sovereign state for many centuries.  The general public are not  familiar with the word ‘sovereignty,’ but they  are very proud of  ‘our ancient kings’ and ‘our ancient history’.    They   firmly oppose  Tamil separatism and    declare ‘rata beddana denna baha”.

International law supports this approach. The  sovereignty of a state is a status recognized and protected by international law. It cannot be easily overturned, said experts.  It  cannot be challenged by non-state actors such as LTTE ,said HL de Silva  . [20]   A sovereign state has full ,complete and exclusive authority to deal with its own territory and with its own nationals, said Nihal Jayawickrema. [21]

A  sovereign state   has control over its airspace, and its territorial sea as well as its land. According to UN Resolution 3171(28) December 1973, Sri Lanka holds permanent sovereignty of all its natural resources, whether on land or on sea.

 Further, International law places great importance on the ‘territorial integrity’ of  sovereign  states ‘Territorial integrity’  is a fundamental principle in international law  which  means the right of a  state to  protect its territorial boundaries and control  the  full territory ,without  interference from anybody.  ( continued)

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[1] Ben Bavinck Of Tamils and Tigers Pt 1 p  307

[2]  https://www.sundaytimes.lk/250406/sunday-times-2/sanctions-and-sri-lankas-failure-to-address-human-rights-allegations-a-self-inflicted-crisis-a-response-594264.html

[3] Island 1.12.19 p 1

[4] Island 15.2.20 p 4  .

[5]  Shenali Waduge https://www.lankaweb.com/news/items/2025/06/11/sri-lanka-2009-post-war-to-present-un-precedents-bias-international-injustice/

[6]  Anne Abayasekara Telling it like it is vol 1 p  51

[7] Dayan Jayatilleke Long war cold peace’  rev edition 2014 p 211

[8] HL de Silva. Sri Lanka A nation in conflict. p 41, 73,74,259, 268, 311

[9] Interview with Rohan Gunaratne, Daily News 10.12.13 p 9 

[10] https://sangam.org/g-g-ponnambalam-1902-1977-his-power-and-plight-as-a-tamil-leader/

[11] HL de Silva. Sri Lanka A nation in conflict. p 38, 41, 78, 80, 81, 82, 86

[12] Daily News 16.4.09 p 6.

[13] Daily News 16.4.09 p 6.

[14] Sebastian Rasalingam. The twilight of Tigers in Sri Lanka .Island. 5.1.2009 p 11

[15] Dayan J. Island 10.2.18 p 9  .

[16]  https://www.lankaweb.com/news/items/2023/06/08/open-letter-to-the-fp-tna-ggp-and-the-terrorist-political-parties/

[17] http://www.slguardian.org/2021/06/sri-lanka-selvarasa-pathmanathan-alias.html

[18] Daily News  22.9.21 p 4

[19] The treaty of Westphalia was very significant for Europe  because it ended the  Holy Roman Empire   The Holy Roman empire, headed by Charles V of Spain was described as neither Holy, Roman nor Empire.  Europe at the time was a hotch  potch of kingdoms, bishoprics, dukedoms   all  fighting with each other. There was Thirty Years War, 1618–1648  and  Eighty years War (1568–1648).These ended with the Treaty of Westphalia  of 1648. This treaty created the sovereign states of Europe as we know them today. The  modern states of Europe, with settled borders  and an agreement  to respect these  borders and not fight with each other started from this time. Italy and Germany however unified only in 1848. This treaty has no relevance whatsoever to Sri Lanka .But Westphalia is used in Sri Lanka by Eelamists  to argue that the present day sovereign state of Sri Lanka is  a recent creation  by western rulers,

[20] HL de Silva. Sri Lanka a Nation in conflict. p  247

[21] Nihal Jayawickrema. The myth of state sovereignty. Sunday Island .28.3.2010 p 10 .