MEMORANDUM

ON THE LEGAL STATUS OF THE WAR IN SRI LANKA
AND THE LIBERATION TIGERS OF TAMIL EELAM

Karen Parker
Attorney at Law
San Francisco California 94118
(415) 668-2752
voice and telefax

CONTENTS

SUMMARY OF ARGUMENT ......................................... 3

THERE IS A WAR IN SRI LANKA ................................. 5

A. What is War. ........................................ 5

B. Terrorism. .......................................... 6

C. War in Sri Lanka. ................................... 7

LTTE ENTITLED TO COMBATANT STATUS ........................... 12

THE SRI LANKA-TAMIL WAR IS A WAR OF
NATIONAL LIBERATION IN DEFENSE OF THE
PRINCIPLE OF SELF-DETERMINATION ............................. 13

HUMANITARIAN LAW RELATING TO THE CONDUCT OF WAR ............. 20

HUMANITARIAN LAW RELATING TO VICTIMS OF THE WAR ............. 26

BREACHES OF THE LAWS AND CUSTOMS OF WAR
IN THE SRI LANKA -TAMIL WAR ................................. 28

SUPPORT FOR LTTE MAY NOT BE CRIMINALIZED .................... 33

CONCERNS FOR THE UNITED STATES .............................. 33

SUMMARY OF ARGUMENT

This Memorandum addresses why the Liberation Tigers of Tamil Eelam may not be included as a terrorist organization under the terms of P.L. 104-132. Rather, the Liberation Tigers of Tamil Eelam are a combat force in a war -- the Sri Lanka - Tamil War. To include the Liberation Tigers of Tamil Eelam in a list of terrorist organizations has no basis in law and fact.

This Memorandum is not meant to be an exhaustive account of the Sri Lanka - Tamil War. The facts chosen are meant to be illustrative of the fact that there is a war and that in the course of the war there have been violations of the rules of war by both sides. For each example given many others could be made.

There is armed conflict (war) in Sri Lanka between the armed forces of the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The conflict is governed by humanitarian law: the Hague Conventions, the Geneva Conventions (including all provisions of the Protocols Additional considered customary law) and all treaty-based and customary laws of armed conflict. A fundamental rule of humanitarian law is that combatants in a war are entitled to combatant status. The LTTE meet all factual and legal tests for combatant status under humanitarian law rules. Laws relating to terrorism do not apply to combatants in wars or to acts carried out in the course of war. Because the LTTE has combatant status, the LTTE cannot be considered a terrorist organization nor can its acts in the course of war be treated as terrorist. Therefore it is legally incorrect to include the LTTE in a list of terrorist organizations under the terms of P.L. 104- 132.

While the war in Sri Lanka could be characterized as a civil war requiring neutrality from third party states such as the United States, this author is convinced that the Tamil people meet all criteria for the right to self-determination. Accordingly, the war in Sri Lanka is a war of national liberation in defense of the right to self-determination. Under international law rules applicable to wars of national liberation in defense of the right to self-determination the United States is legally required to side with the Tamil people and the LTTE. Regardless of whether the war is characterized a civil war or war of national liberation the LTTE still have combatant status and cannot be considered a terrorist organization under P.L. 104-132.

The laws and customs of war do not exonerate all acts undertaken in wartime. There are numerous violations of the laws and customs of war taking place in the Sri Lanka - Tamil war both by the government of Sri Lanka and the LTTE. The existence of violations of the laws and customs of war on either side do not reduce the parties to the conflict to terrorists and the war itself to terrorism: the armed forces of both the government of Sri Lanka and the LTTE maintain their combatant status. Individual violators, however, could charged with breaches of the laws and customs of war.

THERE IS A WAR IN SRI LANKA

A. What is War.

Humanitarian law -- also referred to as the laws and customs of war, the law of armed conflict or jus in bello -- applies when there is armed conflict or war. One of the threshold questions addressed by the law of armed conflict is whether or not a particular situation is a war. Under the currently applicable laws and customs of war, war is action carried out by military forces utilizing the methods and materiel of war to defeat by military means the military forces of the opponent or enemy. Simply put, if it looks like a war it probably is a war.

Military action can involve conventional warfare or guerrilla or other form of warfare. The laws and customs of war do not prohibit any particular form of military action. All modern wars have been fought with a variety of military tactics.

Because the purpose of war is to defeat the enemy military forces, the weaponry of war may vary from situation to situation. Contemporary wars have seen the use of spears and poison blow guns as well as napalm bombs and bullets containing depleted uranium.

It is not necessary for the parties to a conflict to formally declare war for there to be a war: a war exists and the laws and customs of war are applicable when objectively armed conflict is taking place. For example, the United States carried out lengthy military actions in Vietnam without ever having declared war. Even so, the laws and customs of war were applicable to both sides in that conflict.

Many countries at war either refrain from a formal declaration of war or try to deny a war is even taking place at all to try to avoid application of humanitarian law to their conflicts. One method governments use to attempt to avoid evaluation of their military actions under humanitarian law rules is to characterize the conflict as "terrorism" and "counter- terrorism" rather than war. Governments mis-characterize armed conflict for a variety of reasons, all present in the Sri Lanka - Tamil war: (1) the government's own armed forces have violated the rules of war and the government wants to avoid international censure; (2) the opposition forces have destroyed military targets that are insured and the government wishes the insured to receive insurance indemnification for the damage; (3) the government needs foreign aid (war is expensive) and many foreign donors such as the United States restrict foreign aid during war or only allow funds to combat "terrorism". Regardless of the political or economic motives for evoking "terrorism" when a war is taking place, humanitarian law automatically applies and the "terrorism" label is incorrect.

B. Terrorism.

There is no universally accepted international definition of terrorism. Even so, it is easy to distinguish terrorism from war. For example, a group involved in terrorism generally is quite small, does not have any semblance of military command, and does not use the typical weapons or military tactics of war. The groups often function secretly -- in fact the clandestine nature of these groups makes them so hard to control. Most of these groups engage exclusively in random attacks on civilians or on civilian structures using bombs or small firearms or by kidnapping people for ransom. Members of these groups are not entitled to combatant status because their actions and the response by law enforcement actions of governments are not sufficient to qualify as a war.

While there may be a stated goal, groups involved in activities usually labeled "terrorist" seek to achieve that goal by intimidating the opposition into agreement rather than through military achievement. In part this may be because military victory is impossible given the group's small size and limited military training. On the other hand, lack of military activity may reflect on the typical goals of these groups: while some try to overturn governments or seize political power or governance, many groups seek to protect their "system" of monetary gain (usually illegal): the "drug" business, extortion rings and the like. Military action against such groups makes no sense at all - - these groups have no military bases, zones of territorial control, or the like. While occasionally, some groups do have "camps" and carry out "military training", they are not engaged in combat in any sense of the meaning of combat. Wishful thinking, week-end "war games" or playing at war and future plans are not sufficient to qualify as combat. Armed attacks on civilians rather than concerted military actions against the opponent's armed forces are likewise not combat. If on the other hand large-scale, mutually fought military actions over a wide territory are carried out against a so-called "terrorist" group it is far more than likely that the group is not "terrorist" at all but rather a military force in a war. Under these circumstances the "terrorist" is really a combatant.

C. War in Sri Lanka.

Applying the criteria for armed conflict to Sri Lanka, it is patently obvious that there is a war in Sri Lanka and that it is between the forces of the government of Sri Lanka and the LTTE. The government military forces utilize the methods and materiel of war to carry out military actions to defeat by military means the military forces of its enemy the LTTE. On its part, the LTTE carries out military actions against the military forces and military targets of the government of Sri Lanka. There is nothing random or sporadic about this war, nor is there anything clandestine about the LTTE -- the LTTE is very public. The LTTE does not play week-end war games but fights militarily on military battlefields day in and day out.

The war has existed for at least thirteen years or since the period immediately following the massacre of Tamils in Colombo in 1983. The existence of armed conflict was recognized by Sri Lankan government officials in this early period. For example, in 1986 the Finance Minister questioned how elections urged by Prime Minister Bandaranaike could take place when the country was "engulfed in a civil war." The international community also recognized the obvious: in 1987, the United Nations Commission on Human Rights passed a resolution calling on the parties to the conflict "to respect fully the universally accepted rules of humanitarian law" which, of course, only apply in wartime. The United States State Department has also characterized the situation in Sri Lanka as war.

The early years of the war were characterized by Tamil military control of much of the Tamil areas, the emergence of Vellupillai Prabhakaran as the leader of the LTTE, and the gradual supremacy of the LTTE among other Tamil groups in the armed conflict. A most important event of the early years was the failure of the 1985 Thimpu Negotiations. These talks, arranged by India, were to put in place an agreed cease fire and a program for a political rather than military solution to the Tamil national question. The talks took place in Thimpu, Bhutan from 8 July to 17 August 1985, breaking off abruptly when the Tamil delegation walked out in protest of the continued military actions against Tamil civilians, especially Sri Lankan army attacks on Vavuniya and other villages in the north.

In 1987 India became a party in the Sri Lanka-Tamil War several months after the July 1987 signing of the Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka (Indo-Sri Lanka Accord or the Accord). The Accord was to "resolv[e] the ethnic problem of Sri Lanka", to enable India to protect itself from "foreign military and intelligence personnel" and to prevent Trincomalee harbor or other Sri Lankan ports from being used by foreign powers for military purposes. Shortly after signing the Accord, India sent the Indian Peace Keeping Force (IPKF) to Tamil areas. Although under the terms of the Accord the purpose of the Indian military presence was to protect the Tamil people and to carry out a surrender of arms by the Tamil military groups, the Indian forces began fighting the LTTE in October 1987. Between October 1987 and the final withdrawal of Indian forces in 1990 India's military incursion in Sri Lanka produced thousands of refugees of the war and civilian casualties.

At the height of the IPKF - LTTE war, Indian troops were said to number nearly 100,000. Major General Harkirat Singh, the divisional commander of Indian forces, explaining why the Indian Forces were unable to either win or capture the LTTE leadership, reported that the LTTE fought against their tanks at close range with Chinese rocket-propelled grenade launchers. General Singh also reported: "They even attacked tanks with burning jerry cans full of petrol."

Since the withdrawal of Indian forces, both the Sri Lankan Army and Navy have been almost continually engaged in military operations against the LTTE. The government forces use tanks, airplanes, armoured vehicles, military weapons, gun boats and other military materiel. Major military campaigns are given code names. For instance, three recent large-scale military operations against Jaffna in the north were code-named Leap Forward, Riviresa (Sunshine) I and Riviresa II. In the same period of time, the LTTE has been involved with almost continual army and navy operations against the government's forces.

In the past several years, both sides have had some military victories. The Riviresa campaign in the Fall of 1995 by the Sri Lankan army pushed into Jaffna and the LTTE retreated to other areas under their control. Most of the civilian population also fled, and it is only recently that some have begun to return. Even so, at time of this writing, more than 300,000 Tamils from the Jaffna area are still displaced and the war is still raging.

On the LTTE side, in July 1996 the LTTE successfully overran and seized the entire Mullaitivu Army Camp, killing about 1200 Sri Lankan troops. The LTTE are thought to have sustained about 250 casualties, including a large number of women combat troops. The LTTE were able to capture the entire arsenal at the camp. This victory was followed by an ambush of a Sri Lankan army unit at Thenmaratchi (July 28, 1996) in which the LTTE also captured many arms and ammunition.

The LTTE also has naval troops, and has been able to carry out successful operations against the Sri Lankan navy. For example, in April and October 1996, the LTTE "Sea Tigers" sunk five vessels of the Sri Lankan navy in Trincomalee. The "Sea Tigers" have also sunk government vessels in Jaffna, and have been able to carry out periodic blockades.

Since the beginning of the war, the military advantage of each side has ebbed and flowed. What is apparent is that there is a war and that neither side has won. At time of writing (December 1996) there appears to be a another of a series of military standoffs.

LTTE ENTITLED TO COMBATANT STATUS

A fundamental principle of humanitarian law is that combatants in a war are entitled to combatant status. While this principle has been one of customary international law for centuries, it also find expressions in treaty-based humanitarian law. For example, Article One of the Hague Regulations grants the rights of war to members of armies. Members of militia and volunteer corps are also entitled to the rights of war if they meet certain conditions: they must be under responsible command, wear some visible emblem to distinguish them form civilians, carry arms opens and conduct operations in conformity with the rules of war. Even civilians are entitled to engage in combat when they spontaneously take up arms on the approach of the enemy. Because there is a war in Sri Lanka between the government forces and the LTTE, the LTTE have combatant status and the right to engage in combat. This status is inconsistent with a label of "terrorist" -- a terrorist does not have combatant status or the right to engage in combat.


THE SRI LANKA-TAMIL WAR IS A WAR OF NATIONAL LIBERATION IN DEFENSE OF THE PRINCIPLE OF SELF-DETERMINATION

Modern humanitarian law applies to all types of war: international wars, civil wars and wars of national liberation. Each is governed by different provisions in humanitarian law, although there are basic principles applicable to all armed conflicts.

A war is an international war when military action or hostilities take place between two or more separate States. Typically, the military forces of one country engage in military actions against another country by invading another country, but international rules can also apply when a country defends another country from military action from a third state. In all circumstances, the treaty-based and customary international law relating to international war applies to these conflicts. In international wars, the international community must be neutral if the war is equally the fault of the parties. If one party is clearly the aggressor, the international community must condemn the aggression.

A war is a civil war when there is armed conflict taking place in one State between government armed forces and opposition armed forces or groups who have identifiable and responsible military commanders, who control enough territory to carry out a significant level of armed conflict, who distinguish themselves from the civilian population by means of distinct uniforms or other readily identifiable physical features and who have the means to comply with humanitarian law obligations relating to civil wars. Neither police actions against civilian demonstrators nor isolated attacks by armed persons against civilian or government targets qualify as armed conflict. In civil wars, the international community must be neutral, as a civil war is an inherently internal affair. The Sri Lanka - Tamil war could be viewed as a civil war, in which case all humanitarian law relating to civil wars would apply. However, for reasons set out below, this author is convinced that the Sri Lanka - Tamil war is a war of national liberation in defense of the principle of self-determination.

A war is a war of national liberation when a group having a claim to self-determination carries out military actions against the occupying state, which can be a colonial or alien power or a racist regime. Self-determination is the collective right of a people to freely determine their own political status and to pursue economic, social and cultural development. People claiming self-determination must show a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.

In wars of national liberation in the exercise of the right to self-determination or against racist regimes, the international community is required to side with the people with the right to self-determination or fighting against racist regimes. This is because of the peremptory (jus cogens) nature of the principle of self-determination and the international prohibition against racism. Because the right to self- determination is jus cogens, the duty of the international community to uphold it is an obligation erga omnes. Ian Brownlie reinforces the erga omnes obligation to observe the principle of self-determination in his opinion that armed defenders of self-determination have a special combatant status.

The Tamil claim to self-determination is one of the strongest in the contemporary international scene. The three main elements of a claim to self-determination -- historic self- governance in an identifiable territory, a distinct culture and a national will and capacity to govern -- are all present in the Tamil case.

The Tamil people have a centuries-old tradition of independence on the island of Ceylon, broken only by colonial powers. Early mention of a distinct Tamil kingdom and culture exists in the 6th century B.C. in the great Indian epics Mahabharata and Ramayana. A series of Tamil kings founded the ancient capital Anuradhapura and ruled until 101 B.C. when the Tamil Ellaran was defeated by a Sinhalese prince. This capital was retaken by the Tamils and other Indian invaders in the ninth century. By 1214 A.D. however, the Tamils held power in the kingdom of Jaffna, extending into current Tamil lands in the North and East. A 1789 map of the area by the cartographer Du Peron clearly indicates the territorial divisions of the two kingdoms.

The colonial period began in the early sixteenth century when the Portuguese captured the Sinhalese kingdom in the south of Ceylon. The Tamil kingdom remained free until 1621, more than 100 years later when the Portuguese captured the Tamil king Sankili. The Portuguese were defeated by the Dutch in 1658, and the Dutch soon began to import Tamils from south India as slaves and textile workers. The British replaced the Dutch in 1796, who by 1833 governed both Tamil and Sinhala kingdoms under unitary colonial rule.

The first British colonial secretary, Sir Hugo Cleghorn, recognized not only that the Tamil and Sinhalese kingdoms were politically separate, he also attested to their profound cultural, linguistic and religious differences. In his now-famous Minute he wrote:

Two different nations, from the very ancient period, have divided between them the possession of the island: the Sinhalese inhabiting the interior in its Southern and Western parts from the river Wallouve to that of Chillaw, and the Malabars [Tamils] who posses the Northern and Eastern Districts. These two nations differ entirely in their religions, language and manners.

Cleghorn and other subsequent British administrators were acutely aware that the Tamil people are predominately Hindu and the Sinhala people predominately Buddhist. It is self-evident that Tamil culture, based on Hinduism, would be dramatically different from Sinhala culture, based on Buddhism. The Tamil language is also significantly different from the Sinhala language, although they are both derived from ancient Indian languages.

The third element of self-determination -- national will and capacity to govern -- is also exceptionally strong in the Tamil case. Not only are the LTTE themselves evidence of a willingness to defend the right to self-determination with the use of force but the vast majority of Tamil civilians, whether in Sri Lanka or abroad, also show an exceptionally strong national will that has endured for the many long years of the war and indeed throughout the colonial period and post colonial period. Even those relatively few Tamils who do not strongly support the LTTE do not deny their insistence on some form of self-governance, whether in association with the Sinhalese or as a separate nation.

The immediate post-colonial period saw the rise of the highly-regarded Tamil politicians such as G.G. Ponnambalam, founder of the Ceylon Tamil Congress (1944) and S.J.V. Chelvanayagam, founder of the Tamil Federal Party (1947). Chelvanayagam was able to secure agreements with two prime ministers to address the growing Tamil grievances in the early post-colonial period, but these pacts were completely violated by the Sinhala governments. The Tamil United Front was formed by the three leading Tamil politicians -- Ponnambalam, Chelvanayagam and Thondaman -- and Tamil youth and student organizations. Running on a separatist plank, Chelvanayagam won a huge majority in a 1975 election. As cited above, the historic Pannakam meeting in May 1976 resulted in the Vaddukoddai Resolution calling for a separate Tamil state. In the 1977 general elections, the TULF ran on a platform of Tamil "sovereignty in its homeland on the basis of self- determination" and won 18 out of the available 19 seats. The LTTE was formed from a TULF youth group, and took its symbol from the tiger symbol of the historic Tamil kingdom.

The large number of Tamil organizations in Sri Lanka and abroad speaks to this national Tamil will. Each year of the war has seen more and more organization among the Tamil people in Sri Lanka and in the diaspora. The Tamil question is debated and urged in countless community forums and in international conferences, many of which are organized by the Tamils themselves. There are Tamil politicians from a variety of political parties, all of whom attest to a goal of at least significant devolution of power in Sri Lanka to afford the Tamil people full expression of their cultural aspirations as a people. The leading Tamil religious leaders also support Tamil sovereignty. For example, in an impassioned speech at a major peace conference in Australia, The Rev. Dr. S.J. Emmanuel, Vicar General of the Diocese of Jaffna stated:

I am standing here as a man of God in service to a suffering mankind. I have hope in the goodness of God and men. From amidst the deafening sounds of thousands of bombs falling on our soil and consuming sacred lives, I cry out with Moses of old, "Let my people go from this slavery to freedom."

Even prominent Sinhalese leaders attest to the strength of the Tamil will for self-governance. For example, Mr. Adrian Wijemanne writes:

In Sri Lanka that stage is set for a long-drawn-out guerrilla war, the total impoverishment of both nations, the demise of civil government among the Sinhala people and the eventual establishment of the State of Eelam. The best efforts of the Sinhala state can only postpone this sequence of events -- they cannot avert the final outcome.

About the capacity to self-govern there can be no doubt. The Tamil people have a long political history, and there are a variety of Tamil political parties with great experience and highly developed platforms and programs. Many leading Tamils have had high offices in former Sinhalese governments, and while they are now mainly in exile, they are able and ready to serve in a Tamil government. The LTTE has maintained a civilian authority in the areas under their control since the beginning of the war

The Tamil people also have a claim to self-determination based on the racism and persistent violations of their human rights carried out by the succession of Sinhala-dominated governments since the end of the colonial period.

SEE PART II