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Save the civilians trapped by the LTTE

A report in The Island of February 18, 2009 quotes India’s Home Minister, Chidambaram as having said: "The LTTE is an armed militant group. They must announce that they are willing to lay down arms and are prepared for talks. Simultaneously, the Sri Lankan Government should suspend its military offensive". Similar views were also expressed by the President of India. It is being very simplistic to think that the LTTE would live by a mere announcement of their "willingness" to lay down arms, considering that they did not live by firmer commitments to lay down arms under the Indo-Lanka Accord nor any other commitments to international agencies such as the UN.

In the meantime India’s External Affairs Minister Pranab Mukherjee declared that "the LTTE would best serve the interests of the Tamils by immediately releasing all civilians and laying down arms"(The Island, February 19, 2009). This position fails to recognize and acknowledge that the LTTE’s interest is not the wellbeing of the Tamils but its own survival; hence, the need to use the Tamil civilians as their protective shield. Since then he has stated that a political solution as being the only way out.

The Island (Ibid) also reports that ex-President Kumaratunga speaking at a panel discussion in Delhi had stated that Sri Lanka’s dragging ethnic conflict might have ended a long time ago if only the devolution of powers as envisaged in the Indo-Lanka Accord had taken place earlier. This understanding of the conflict is at complete variance with what is generally attributed to be the reason for the conflict; i.e. that the powers devolved under the Accord were insufficient and that the LTTE to this day believes that only a separate state through armed conflict would satisfy their expectations. Furthermore, if the powers devolved under the Accord would have resolved the conflict a "long time ago" why did the government during her stewardship as President attempt to devolve more powers than provided for under the Accord?

The issue now is not how the conflict could have been resolved a "long time ago" but how to save the trapped civilians held hostage by the LTTE. No one has an answer to that question. The issue with terrorists such as the LTTE is how to get them to conform to humanitarian laws. This is so whether they are called by any other name such as rebels, insurgents, freedom fighters or any other. The real problem is how to get such entities engaged in unconventional conflicts to abide by humanitarian laws. These non-state actors are not accountable to anyone. All one can do is to appeal to their good sense. If they chose to ignore the appeals as the LTTE are doing, there is nothing that can be done under existing laws to pressure them to comply. All one can do is to appeal to the LTTE to release the trapped civilians and if they chose to ignore the most anguished of appeals there are no provisions to take punitive action against them. Even the UN cannot save their trapped representatives in the Vanni.

This is the problem for the International Community. While legitimate states are required to live by internationally accepted norms, non-state entities such as the LTTE are free to adopt whatever it takes to achieve their objectives. Until the International Community comes to terms with this dilemma all well intended counsel should be kept close to oneself.

REGIONAL AND INTERNATIONAL DIMENSIONS

India’s involvement in Sri Lank is compelled by regional geopolitics and the presence of 50 million plus Tamils in Tamil Nadu with cultural and ethnic links to Sri Lanka’s Tamils. The involvement of a significant section of the world community is because of the electoral strength of the Tamil diaspora in these countries. This strength has been used by them to pressure legislators and influence think-tanks and persons of influence in their adopted countries. These strategies have enabled them to effectively internationalize the conflict. Collectively, the conflict in Sri Lanka has been the focus of much attention. This attention has prompted representatives of these countries to offer unsolicited advice and help towards resolving Sri Lanka’s national question; the latest being the appointment of a Special Envoy from UK and "advice" from East Timor.

With all their professed good intentions motivated undoubtedly by self interest none of them would be in a position to persuade a non-state actor such as the LTTE to comply by accepted norms of Humanitarian Laws as a minimum. These Envoys may come and go, but no one would be able to persuade or in a position to pressure the LTTE to release the Tamil civilians held hostage. They would be released only if and when the LTTE sees it as a tactical advantage.

However, international opinion is that all this does not relieve the LTTE of its obligation to comply with Human Rights and Humanitarian Laws even though mechanisms to enforce such obligations do not exist at this time. For instance, Philip Alston, UN’s Special Rapporteur in his report on Sri Lanka concluded that "Human rights law affirms that both the Government and the LTTE must respect the rights of every person in Sri Lanka…The Government has assumed the binding legal obligation to respect and ensure the rights recognized in the International Covenant on Civil and Political Rights(ICCPR). As a non-state actor, the LTTE does not have legal obligation under ICCPR, but remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights… The LTTE should refrain from violating human rights, including those of non-LTTE-affiliated Tamil civilians"(Andrew Clapham, International Review of the Red Cross, "Human rights obligations of non-state actors in conflict situations", Vol. 88, No. 863, September 2006).

In his "Final remarks", Clapham states: "It is becoming increasingly obvious to those interested in ameliorating the suffering which accompanies conflicts that the lawyers need to adjust their field of vision to encompass the human rights obligations of non-state actors". It is therefore apparent that no meaningful purpose would be served by visiting Envoys or any others to observe the human rights situation in Sri Lanka without first addressing the issue of requiring ALL "parties to a conflict" to abide by Human Rights and Humanitarian Laws. This is what the International Community should be addressing.

CHARGES OF GENOCIDE

Charges of Genocide have been leveled against the Sri Lankan Government as a result of the military offensive. The word "Genocide" elicits shock and awe. However, under no circumstances can such charges be leveled against the Government for the following reasons. For instance, Article 2 of The Convention on the Prevention and Punishment of the Crime of Genocide 1948 states: "In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
From the above it is evident that Article 2 describes two elements associated with the crime of genocide. The first is mental. This addresses "intent". The second is physical. This addresses the 5 acts described above. Thus charges of genocide require the establishment of the perpetrators’ "INTENT" demonstrated by a manifest pattern directed against an indelible group (Preparatory Commission International Criminal Court (PCICC) (R.J. Rummel, The crime of "genocide" defined in international law), http://www. Hawaii.edu/powerkills/GENOCIDE.ENCY.HTM).

The effort and expense incurred by current as well as previous Sri Lankan Government to deliver food and other essential services including education and health to areas controlled by the LTTE throughout the conflict, demonstration that the intent is not to "destroy whole or in part" the Tamil community but to sustain them under trying conditions. The fact that these practices are unique only to Sri Lanka has already been acknowledged by international observers starting from 1993 by UN Representative on IDPs, Mr. Francis Deng. Furthermore, the fact that the overwhelming majority of Tamils live by choice throughout the rest of the country as well demonstrates that a "manifest pattern" does not exist to "destroy whole or in part" members of the Tamil community. Therefore, charges of genocide should be dismissed outright as being made by ignorant and frivolous individuals solely for effect and sensation. The effect of their baseless charge is to trivialize the suffering endured by the unfortunate civilians for political and strategic gain.

CONCLUSION

The suggestion that an announcement of willingness to lay down arms is sufficient guarantee of assured conduct on the part of the LTTE reflects a total lack of understanding of the diabolical character of the LTTE despite it being amply manifested over the past two and a half decades. One would expect political leaders with global reach to be better informed. As for the suggestion that the implementation of the Indo-Lanka Accord would have resolved the conflict "long time ago", it should not be dignified with comment.

Minister Mukherjee had declared that India supports a political solution "acceptable to all the communities". The Minister was also of the opinion that the "full implementation of the 13th Amendment to the Sri Lankan Constitution would be a significant first step" (The Island, February 19, 2009). Perhaps it may not have occurred to the Minister that these statements contradict each other because the 13th Amendment is not acceptable to a significant majority of Sri Lankans including members of the Minority communities. Therefore, while the 13th Amendment in a limited form could serve a purpose in the near term to facilitate resettlement, rehabilitation, security and development, a political solution acceptable to all needs to be worked out. The corner stone of such a solution has to guarantee the territorial integrity and security for both India and Sri Lanka; a guarantee not assured by the 13th Amendment with the province as the peripheral unit and now particularly so with the Northern and Eastern Provinces as two separate units.

The International Community has accepted that future conflicts would be unconventional in nature with the involvement of non-state actors. There is a strong possibility that the current global economic melt down would exacerbate such tendencies. In preparation to meet such emerging challenges the International Community should develop procedures to make non-state actors accountable for violation of Human Rights norms and Humanitarian Laws. Instead of focusing on Responsibility to Prevent (R2P) or its new version Responsibility to Prevent, a more significant contribution could be made by focusing on the enforceable obligations of non-state actors if the rights of civilians victimized by conflict are to be protected.

The centrality of the "Intent" factor for classifying a conflict as "genocide" is clearly not present in the war in Sri Lanka, nor in Afghanistan and some other countries where conflict is taking place today, in contrast to the situation that had occurred in Germany during WW11. Evidently, this vital difference has not be clearly discriminated and understood by either those agents/agencies that accuse Sri Lanka of genocide, or by those defending Sri Lanka against these accusations.

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