Sunday, 07th September 2014
by Shenali D. Waduge
Today’s wars are not between States. IHL(International Human Law) and associated treaties are meant for conventional wars and with terrorism not defined there is a big question mark as to how terrorists are to be charged for their crimes (war crimes and crimes against humanity).
The resolutions and investigation against Sri Lanka inspite of international laws in place has no scope for terrorists and given LTTE is an international proscribed terrorist organisation the question is how will an international investigation charge LTTE for its crimes? We are not satisfied to have a panel declare LTTE guilty on paper with the lame excuse that its leader is no more.
With recent concerns of LTTE raising its head in India, Australia and other parts it warrants for all the nations that continue to maintain the ban on the LTTE to apply universal jurisdiction against all individuals, organisations, fronts, campaigners ,fund raisers and even sympathisers (even foreign passport holders) to be investigated and charged for crimes that took place across three decades by the LTTE upon innocent civilians in civilian territory and to civilian installations.
Terror
Today’s ‘wars’ have been outsourced to groups of people armed to carry out terror. That outsourced terror has spread across the globe and accounts for 63 countries which are victims of 560 conflicts all involving militias, guerillas and separatist groups.
Americas: Five countries and 25 conflicts between drug cartels, militias-guerrillas, separatist groups and anarchic groups.
Middle East: Eight countries and 180 between militias-guerrillas, separatist groups and anarchic groups.
Europe: Nine countries and 71 between militias-guerrillas, separatist groups and anarchic groups.
Asia: 15 countries and 128 between militias-guerrillas, separatist groups and anarchic groups.
Africa: 26 Countries and 155 between militias-guerrillas, separatist groups and anarchic groups. Source: Wars in the world
Each of these groups is tasked to and thrives because of their brand of terror unleashed upon general masses.
There is no war zone in which they fight; their military objectives become ordinary civilians and civilian infrastructure. They have become proscribed as ‘terrorist groups’ because of the terror tactics they adopt.
Perplexing
Given that Governments have proscribed them why is it impossible to implement ‘universal jurisdiction’ against the crimes they commit within States and extended globally while their ‘organisation’ generally has an international nexus and network wherein intelligence agencies of these countries are well aware and share information about their ‘fronts’ disguised behind charity, NGO and humanitarian organisations to raise funds and covertly promote the objectives of these terrorists and their ideology.
What is universal jurisdiction: It is the jurisdiction established over a crime without reference to the place of perpetration, the nationality of the suspect or the victim, or any other connection between the crime and the prosecuting State.
The aim of universal jurisdiction is that international crimes affect international order and as such the offences affect the citizens of every country.
Given that LTTE crimes have lasted three decades it is perplexing how with tens of thousands of people killed by the LTTE whose dossier of crimes are well documented by foreign governments and law enforcements, why universal jurisdiction has not been applied.
When 32 countries have banned LTTE and LTTE fronts that are now declared banned continue to operate in foreign nations it is in the spirit of diplomacy between States that people living as foreign nations should be criminally charged by those nations for States can prosecute their nationals for crimes committed abroad and all these pro-LTTE people holding foreign passports have aided and abetted LTTE crimes in Sri Lanka over the three decades.
If terrorism constitutes a criminal offence whether it is defined by the UN or not, the fact that anti-terror laws, international counter terrorism laws prevails necessitates the application of universal jurisdiction against these perpetrators because it is often these entities operating from abroad that help raise funds to purchase the arms and equipment to carry out a protracted terror offensive against sovereign States.
LTTE’s terrorism is not something the world did not know about. The world knew that LTTE targeted civilians.
IHL
The LTTE violated Additional Protocols to the Geneva Conventions that prohibits acts aimed at spreading terror among the civilian population. What was done against LTTE’s ‘acts of terror’? These acts had no military advantage except to create mayhem.
With Sri Lanka’s problem defined as a non-international armed conflict, we would like to know exactly how LTTE followed its IHL obligations?
a) Did the LTTE respect and ensure respect for IHL by all those acting on its instructions, or under its direction or control. b) Did LTTE allow and facilitated rapid unimpeded passage of humanitarian relief. c) Did LTTE keep hostages – a violation of Geneva Conventions. d) Did LTTE keep human shields – a violation of Geneva Conventions. e) Did LTTE blur distinction between combatant and civilian.
What needs to be said is that inspire of LTTE being called ‘freedom fighters’ ‘terrorists’ or otherwise and it does not have any status under IHL, the LTTE does have legal obligations as an armed group and an armed group in an armed conflict has obligations to ensure its members respect IHL at all times.
Civilians
The question is how will the Panel recommend upon the conclusion of its investigation to press criminal charges against Living LTTE members without excusing LTTE as now dead.
It must also be noted that LTTE cadres or captured enemy fighters are not considered prisoners of war. In non-international armed conflicts, LTTE can be prosecuted for even taking up arms. (Prisoner of War is a special status given under Third Geneva Convention to captured enemy soldiers ‘combatants’ in international armed conflicts only.
While IHL asks governments to grant broadest amnesties at the end of an armed conflict what has IHL done in terms of justice for the dead civilians over three decades in Sri Lanka. At every turn LTTE – the killing force that is armed and trained and the sponsoring force comprised of Sri Lankan, Sri Lankans holding foreign passports, foreigners have been aiding and abetting terror acts over the years completely escape investigation and charges for their crimes.
There are guidelines available to press charges. The EU’s Framework Decision on Combating Terrorism as well as the 2001 Security Council Resolution 1373 is what Sri Lanka has applied on over 400 individuals and organisations of late.
While Sri Lanka has applied 1373 Resolution it is of concern what foreign nations have done to compliment this by freezing the financial assets of these named LTTE fronts as well as investigating all those associated and holding portfolios in these now banned organisations?
Head trainer
What we now need with the ground terror of LTTE no more is for the peaceful elimination of terrorist sponsors and organisations camouflaged as peace doves. These same organisations have covertly aligned themselves to entities attempting to forge regime change to enable them to remain unexposed and protected.
The proscribed entities listed in the Gazette consist of the main LTTE and 15 other alleged front organisations of the tigers.
The proscribed organisations are:
1. Liberation Tigers of Tamil Eelam a.k.a. LTTE a.k.a. Tamil Tigers. 2. Tamil Rehabilitation Organisation a.k.a. TRO. 3. Tamil Coordinating Committee a.k.a. TCC. 4. British Tamil Forum a.k.a. BTF. 5. World Tamil Movement a.k.a. WTM.
6. Canadian Tamil Congress a.k.a. CTC. 7. Australian Tamil Congress a.k.a. ATC. 8. Global Tamil Forum a.k.a. GTF. 9. National Council Of Canadian Tamils a.k.a. NCCT a.k.a. Makkal Avai. 10. Tamil National Council a.k.a. TNC. 11.Tamil Youth Organisation a.k.a. TYO. 12. World Tamil Coordinating Committee a.k.a. WTCC. 13. Transnational Government of Tamil Eelam a.k.a. TGTE. 14. Tamil Eelam Peoples Assembly a.k.a. TEPA. 15. World Tamil Relief Fund a.k.a. WTRF.
16. Headquarters Group a.k.a. HQ Group.
According to authoritative sources the organisations listed as suspected terrorist entities functioning on foreign soil fall under four broad categories reportedly under the overall control of four key people.
They are the organisations under: 1. Perinbanayagam Sivaparan alias Nediyavan, 2. Fr. SJ Emmanuel, 3. Visuvanathan Ruthirakumaran, 4. Sekarampillai Vinayakamoorthy alias Vinayagam.
It is strange that the GOSL has omitted the wife of Anton Balasingham who was the head trainer of the LTTE female suicide cadres where not only did she train children to kill she gifted each with a cyanide capsule and ordered them to commit suicide.
LTTE ban
Taking one's life is a criminal offence and charges need to be pressed against her while she lives comfortably in the UK. Legal luminaries (in Sri Lanka and overseas) should offer pro bono legal counsel for the families of these children who perished under her orders.
* 1992 – India was the first to ban LTTE following the assassination of Rajiv Gandhi. * 1997 - USA banned LTTE as a Foreign Terrorist Organisation on 8 Oct 1997 and * 1998 - Sri Lanka bans LTTE following LTTE attack on Dalada Maligawa, Kandy. * 2000 - UK designated LTTE as a Proscribed Terrorist Group under the UK Terrorism Act of 2000.
* 2001 - USA designated LTTE as a Specially Designated Global Terrorist organisation since Nov 2, 2001. * 2006 - EU (Council of the European Union) comprising 28 nations declared LTTE as a Terrorist Organisation on 17 May 2006 (Austria, Beligum, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemberg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and UK. * 2006 Canada. * 2009 - Sri Lanka 7 January 7, 2009 (Note the ban placed in 1998 was removed by the Ranil Wickremasinghe Government on January 4, 2002 to facilitate the infamous Ceasefire Agreement).
Sri Lanka is not as powerful as US or Israel to declare that they would authorise and use ‘all necessary force’ against nations, organisations or persons they deem as carrying out terrorist attacks.
This self-declared authority gave the right to the US to military intervene in numerous nations without even the mandate of the UN and continue to occupy these nations using scores of reasons to do so.
No UN treaty nor UN Secretary General can remove US troops from the countries they are now deployed in.
The US ‘war on terror’ has given it all jurisdictional rights of a state at war without a state actually declaring war against the US.
Main concern
The US, UK and powerful nations do not need universal jurisdiction. They just kidnap people from anywhere in the world and fly them to undisclosed destinations where legal counsel and access to families are also denied.
In most cases they simply disappear from the face of the earth.
However in 2013, the US indicted three foreign nationals in a Federal District Court for plotting suicide bomb attacks. It is a unique case because the three foreign nationals (two Swedes and one British) were captured by an African government while on their way to join al-Shabab, the Somali Islamist group.
The three had not planned to target US nationals, or facilities or had ever been to the US but the US prosecuted them for their participation in a foreign civil war.
If the US could use Article 1 giving Congress the power to punish entirely foreign conduct with no US nexus surely LTTE fronts can be taken and tried in the same way.
The three foreign nationals were charged under ‘material support for terrorism’ 18 USC 2339B.
Why can the same not be done to LTTE remnants, LTTE sympathisers, LTTE fronts overseas that can be complimented under the Define and Punish clause with the law of nations? Why can these LTTE ‘members’ not be charged as co-belligerents?
What our main concern is that the world watched LTTE murder civilians for three decades.
Their solution was for Sri Lanka to indulge in peace talks, negotiations, ceasefires. None of these solutions stopped a single murder.
The bulk of LTTE’s crimes were committed outside the war theatre and specifically targeted against civilians disguising themselves as civilians.
These are all criminal acts. The previous Governments and their lethargic officials are to be blamed for not exploring all legal and international avenues to hold LTTE sponsors to task.
The eventual option taken was to militarily defeat the LTTE and this has saved 20 million people from mental trauma of not knowing if they would return home.
The mental satisfaction for 20 million people could not be matched by any initiative of the international community to date.
Now with a useless investigation covering just seven years of a 30-year killing era by LTTE and with the loopholes that will obviously let the LTTE off the hook and attempt to charge only Sri Lanka’s leaders and armed forces, it is time for legal luminaries in Sri Lanka and overseas to see how best they could put their knowledge to deal with entities like the LTTE where their brand of terror is controlled from overseas and where the controllers still remain at large assisted by their local puppets, unpunished and conniving further chaos.
From: http://www.sundayobserver.lk/2014/09/07/fea03.asp
