Wednesday, 11th June 2014
By Nayantha Wijesundara
The Eelam War IV came to an end in May 2009 with the decisive victory of the Sri Lankan State. So, many think the war is over now. I too thought this for a short while. But in retrospect, I think what was won, was only one battle of the greater war. If we get to the root of the issue, the problem was, and is, separatism. The LTTE and the three-decade war was just one way the separatist elements purported to dismember Sri Lanka. Although this violent manifestation of separatism was neutralized after a protracted civil war (or armed conflict, whatever one wishes to call it), the Eelam project was never really tackled effectively. In the grand scheme of things, the actual war is against the Eelam project, a war Sri Lanka is not winning at the moment.
Apart from decimating the LTTE, there was another consequence of the military victory. That is, it reshaped the frontiers of the bigger ultimate war. What was contained within the geographical boundaries of Sri Lanka for the last several decades has now transcended to the international arena. This is not too obvious to the average observer in Sri Lanka who lives engulfed in the illusion of peace. While the Sri Lankan State was jubilating over and cashing in on the military victory, the Eelam project was reorganized in the , and to be frank, it has been successful so far in its work.
In 2011, the Dutch Courts convicted several Tamil individuals for raising funds for a proscribed organization, that is, the LTTE. While the Court did not say the LTTE was a terrorist organization, it did say the defendants committed an offence by raising funds for an organization banned in the EU. This led to a case being filed in the European Court of Justice with a view to lifting the ban on the LTTE (LTTE V. The Council of European Union, case No. T-208/11). Victor Koppe, the Amsterdam based lawyer appearing for the LTTE, told the European Court of Justice that the LTTE was not a terrorist organization, but a liberation movement fighting for the rights of the Tamils against an oppressive genocidal regime. Reportedly, his position has been that the ban on the LTTE prevented Tamils from raising funds to fight for their right to self determination.
European Court
From what I am aware of, the Council of Europe, the respondent in the case, has not handled the case well and there are substantial issues with the credibility of evidence it has submitted to Court, which included Wikipedia pages. Anyone with an iota of knowledge on the law of evidence knows that citing Wikipedia is not exactly the way to go about when presenting evidence to a Court of law. The case has already been argued and if I'm not mistaken, the European Court of Justice is to give its decision in a few months' time. It is possible that the Court will order to lift the ban on the LTTE through its ruling. I hope I will be proven wrong on this count, because if the Court does lift the ban, Sri Lanka is going to be in for some considerable trouble.
The EU has 28 member States. Some of them are very powerful both financially and politically and have significant clout in the UN. In fact, the EU can exert tremendous pressure on the UN. One example is the Kadi cases before the European Court of Justice. Kadi was put on the terrorist sanction list of the UN in 2001 and within days the EU too placed him on its own sanctions list, as it had to comply with binding decisions of the UN Security Council. The matter did not however, stop there. Kadi challenged his placement on the EU sanctions list as violating the European Convention on Human Rights and the resultant pressure this matter exerted on the UN, arguably led to the Security Council establishing the office of the Ombudsperson to review UN Security Council sanctions lists and Kadi was subsequently taken out of the list. The point here is, the EU has considerable power over the UN and its actions.
Coming back to the LTTE case, if the European Court of Justice lifts the ban on the LTTE, it will give the LTTE and its associates the space to openly raise funds, lobby European governments and openly engage in propaganda, in 28 western countries. This will allow the LTTE activists/sympathizers to cast away the front organizations that they have been hiding behind thus far and come out into the open and propagate for a separate State in Sri Lanka.
Another, pervasive consequence would be that, it will to a great extent, delegitimize the military victory. This is simple logic: if the LTTE is recognized as a liberation movement (akin to Mandela's ANC, as some Europeans have told me), then the natural consequence would be to brand its opponent, as an oppressive and genocidal entity. In this case, the Sri Lankan armed forces and the State. So, the tables could very well turn, and the sudden shift could disorient the Sri Lankan State and the vast majority of people would not even know what hit them. The possibility of a delegitimized military victory legitimizes the vanquished, the LTTE and its Eelam project, in the eyes of the western hemisphere. A legitimized LTTE in the West cannot be taken lightly as the West, whether we like it or not, still holds considerable power over the direction the world turns.
Credibility in European eyes
The LTTE also has some credibility in the eyes of European academia. I don't think that in the vast majority of cases, this is because they have some nefarious agenda. It is just that most of them work with what they know, the information they have been exposed to. I was once told by a European scholar that in no country in the world has the militarily won a war against terrorism. So, naturally, I asked, what about the LTTE? The answer was that it is doubtful whether the LTTE is a terrorist outfit as they were fighting for the freedom of Tamils. Coming from Sri Lanka, I know how the LTTE in fact killed off the moderate Tamil political leadership who were actually fighting for the rights of Tamils, but in this part of the world, these chapters have been written off from the historical account by decades of lobbying and propaganda.
I have also been told by some academics that the reason for the failure of the CFA was because the government banned the LTTE as a terrorist organization and imposed travel bans on LTTE representatives, thereby preventing them from travelling abroad for peace talks. Knowing what really happened, I recognized this for the palpable untruth it was. But this is the prevalent impression among some European academics.
I have also been told on several occasions that the LLRC was a substandard answer to the Sri Lankan conflict. The reason given was that it did not focus at all on accountability measures, that is, prosecutions for alleged crimes. The idea that the LLRC was based on the principle of restorative justice and not on retributive justice, and also the fact that the LLRC did recommend investigations and prosecutions on some excesses by the armed forces, is not even considered.
These are just some examples of what I have been told on the matter and my feeling is, it is not the case that these individuals have some agenda against Sri Lanka, but their assessment of the situation was based solely on the information they have been exposed to. There is little that is written about the Sri Lankan conflict in international academic journals when compared to other conflict situations. But even this little is largely one-sided and the trajectory of many of these articles is that the war was of questionable legitimacy and the subsequent inaction on the reconciliation front by the government, in the opinion of these authors, confirms the questionability of the war.
So, the forecast for Sri Lanka in Europe is gloomy. Thus, I ask myself the question, 'how did we get here after successfully defeating a ruthless terrorist organization?' I see three inter-linked factors: the proactive Tamil diaspora, the failure of the Sri Lankan foreign office and the minimal progress made on transitional justice and reconciliation by the government. The diaspora factor is beyond the control of the Sri Lankan State. However, not the other two factors. And this is precisely where the government has repeatedly failed.
To be frank, the Sri Lankan foreign office never handled the LTTE issue well, except during the time of Lakshman Kadirgamar, who, unfortunately, is no more. This is quite possibly the best strategic targeted killing the LTTE carried out. Since the 1980s the attitude of the foreign office has not been proactive in tackling the LTTE/separatist propaganda machine. But its repercussions were not felt strongly during the initial years because the world was more aligned towards State sovereignty at that time. Insurgents and other armed groups did not enjoy much sympathy at that time internationally. In short, it was a different world then.
But now, since the 1990s there has been a massive shift in how sovereignty is perceived. Now it is oriented towards the individual and consequently, natural sympathies lie with the insurgents and other groups that claim to be fighting against oppressive regimes. This process gathered momentum with the mushrooming of human rights advocacy groups whose orientation has always been anti-State. Although largely under estimated, these rights advocacy groups wield considerable influence over international organizations like the UN and Western Governments. For instance, since the 1990s large numbers of these 'rights activists' work for the UN and this has had a significant effect on the way the UN perceives internal conflicts such as that in Sri Lanka. This is the same with the European academia, many of whom are closely associated with international organizations, including the International Criminal Court and other ad hoc international criminal tribunals.
Consequences
However, given the track record, there are no signs that the Sri Lankan foreign office read these changes in the global arena. It was satisfied with its engagement with their foreign counterparts. The foreign office should have actively engaged these rights groups and academia and placed a credible government version of events with regard to the war on the record. It is not sufficient to just release a press statement or accuse others of conspiring to overthrow the government. This rhetoric carries no weight. Throughout the years, there was a total failure on the part of the foreign office to actively and constructively engage these influential non-State actors. It had to be recognized that it is simply not enough to maintain relations with only foreign governments.
The result of this failure is reflected in the academic literature on the Sri Lankan conflict, which is largely one sided. The importance of academic accounts on the Sri Lankan conflict is that in time to come, it will become the authoritative western account of what happened in Sri Lanka. This has far reaching consequences since Europe, although geographically distant, plays a pivotal role on the issue as it is both a strategic powerhouse and the predominant standard and norm setter in the international arena. Being a small State and a virtual nonentity in the grand scheme of international affairs, we simply cannot afford to lose Europe like this.
"The government too does not help the case. For the last five years since the end of the war, very little qualitative progress has been made on the reconciliation front. I will not get involved in the inadequacies of the reconciliation strategy, if there is one, as they have been highlighted by many on numerous occasions. But I will only mention that due to the inadequacies of the reconciliation process, the government has lost credibility in the West. Nobody here takes the Sri Lankan Government very seriously. True, it appointed the LLRC and the Commission came out with a lengthy report, which I personally think was one of the best efforts made given the circumstances."
But the problem is the government has not implemented even the LLRC recommendations. Had it done so, perhaps, the government would have had a fighting chance in the siege on Sri Lanka.
This does not augur well for a government which has to fight a globalized intellectual war on separatism.
The future of the war is tricky as it is very difficult to see the opponent with clarity. It is a war of ideas and strategy and not military might. This is a war to be waged with the intellect. I am not sure whether this is recognized yet, but so far, we have been losing ground. So far, the government has been on the defensive and to be fair by the government, it has been under tremendous pressure from the West for the last 7-8 years. But this defensive strategy alone is not going to win the war. It is imperative that the government works out its strategy on how to constructively engage the powerful non-State actors such as lobbyists, rights advocacy groups and also the Western academia.
Under siege
If I am to get to the gist of this piece, it is that Sri Lanka is under siege at the moment, and the war never really ended in Nandikadaal. This is not apparent at a cursory glance because we don't see the bombs going off anymore. The soldiers of the present day and the future are in suits armed with strategy and not in military fatigues. This is an unprecedented event in Sri Lankan history and foreign relations. But the margin for error is very slight and with each passing day of inactivity, vital ground is being lost.
(The writer is a former prosecutor of the Attorney General's Department and is presently reading for an Advanced Masters in Public International Law at Leiden University in the Netherlands and can be contacted at naywij@gmail.com
From : http://www.ceylontoday.lk/90-66013-news-detail-losing-europe.html
