By Neville Ladduwahetty

The European Union’s General Court is reported to have rejected an appeal to lift the ban on the LTTE as an international Terrorist Organization within Europe (Sunday Times, November 28, 2021). Continuing, the report states: “The Court rejected multiple pleas…The argument that the LTTE had transformed into a transnational network composed of various divisions which respects Tamil rights and the peaceful enjoyment of the right of self-determination, was also rejected”. The Court had stated: “In fact, a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other hand, the conduct in which they engage in order to attain them”.

SIGNIFICANT CLAIMS by LTTE

During the course of the Court hearing the LTTE stated the following:

42     “The LTTE submits that Regulation No 2580/2001 is not applicable to situations of armed conflict, since those conflicts — and therefore the acts committed in that context — can, in its opinion, only be governed by international humanitarian law”.

43 “However, the historical facts show that the LTTE was involved in armed conflict against the armed forces of the Government of Sri-Lanka, seeking self-determination for the Tamil people and their ‘liberation from the oppression’ of that government. Given the way in which the LTTE’s armed forces were organised and their manner of conducting operations, the members of those forces meet all the requirements laid down by international law for recognition as ‘combatants’. That status gave them immunity in respect of acts of war that were lawful under the terms of the law on armed conflict and meant that, in the case of unlawful acts, the LTTE would be subject only to that law, and not to any anti-terrorism legislation. Since legitimate acts of war cannot be categorised as unlawful under national law, they fall outside the scope of Common Position 2001/931, which, as provided under Article 1(3) thereof, does not apply to acts which are not offences under national law”.

RESPONSE DURING the COURT PROCEEDINGS

The relevant paragraphs from the Court proceedings are presented below.

49      “The Commission argues that the LTTE is mistaken in asserting an incompatibility between armed conflicts and terrorist acts. There are no principles of immunity for combatants in respect of terrorist acts perpetrated during armed conflict. The LTTE does not substantiate its claim that the acts of which it is accused in the grounds for the contested regulations are lawful acts of war. The LTTE is wrong to claim that terrorist acts committed in the context of an armed conflict are subject only to humanitarian law. The institutions of the European Union enjoy a broad discretion as regards the European Union’s external relations and the factors to be taken into consideration for the purposes of adopting measures to freeze funds. The European Union compiles a list of terrorist organisations in order to deprive them of their sources of income, and it does this whether or not they are participants in an armed conflict. That approach is consistent with the European Union’s view — broadly shared, moreover, by the rest of the world — that all terrorist acts are reprehensible and must be eradicated, whether committed in times of peace or of armed conflict”.

61      “The Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War expressly provides, in Article 33, that all measures of terrorism are prohibited. Similarly, Additional Protocols I and II to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International and Non-International Armed Conflicts, of 8 June 1977, which seek to ensure better protection of those victims, provide that acts of terrorism are prohibited at any time and in any place whatsoever (Article 4(2) of Additional Protocol II) and that acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II)”.

62      “It follows from the foregoing considerations that the perpetration of terrorist acts by participants in an armed conflict is expressly covered and condemned as such by international humanitarian law”.

115    “In the present case, it should be noted that, although the decisions adopted by the UK authorities (namely the Home Secretary and the UK Treasury) and Indian authorities do not in fact constitute, strictly speaking, decisions for the ‘instigation of investigations or prosecutions for an act of terrorism’ or ‘condemnation for such deeds’, within the strict criminal sense of the term, the fact remains that those decisions lead to the ban on the LTTE in the United Kingdom and the freezing of its funds, and also the proscription of the LTTE in India, and that they therefore clearly form part of national proceedings seeking, primarily, the imposition on the LTTE of measures of a preventive or punitive nature, in connection with the fight against terrorism”.

117    “Therefore, the LTTE is incorrect to claim that the only case of a non-criminal decision accepted as a basis for listing are decisions of the Security Council, as mentioned in Article 1(4) of Common Position 2001/931. The purpose of the last sentence of the first subparagraph of Article 1(4) of that common position is only to afford the Council an additional listing possibility alongside the listings which it can make on the basis of decisions of competent national authorities”.

COMMENT

It is evident from the admissions made by the LTTE that they were engaged in an armed conflict and that their acts should be judged under provisions of International Humanitarian Law. Furthermore, starting with the Geneva Conventions of 1949 that all “measures of terrorism are prohibited” and “relating to the Protection of Victims of International and Non-International Armed Conflicts, of 8 June 1977, which seek to ensure better protection of those victims, provide that acts of terrorism are prohibited at any time and in any place whatsoever (Article 4(2) of Additional Protocol II) and that acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II)”.

The significance of the EU Court Ruling is the acknowledgement that because Additional Protocol II that is applicable to non-international armed conflict, as it was in Sri Lanka, it should be read along with the Geneva Conventions of 1949 because it offers greater protection for civilians. This means that provisions of Common article 3 of the Geneva Conventions and its expanded provisions in Additional Protocol II of 1977 should be factored in all evaluations when addressing accountability. Furthermore, it means that Article 6 of the Additional Protocol II of 1977 should be followed in the case of “Penal prosecutions”. Since this calls for “anyone charged with an offence shall have the right to be tried in his presence” and on the “basis of individual penal responsibility” (Article 6, (b) and (e), the question of charging anyone associated with the armed conflict presents serious challenges because it rules out command responsibility, and because the inability to locate and identify former combatants becomes a barrier to prosecution.

Therefore, the efforts the UNHRC is currently engaged in to collect evidence to exercise Universal Jurisdiction, becomes a futile exercise.

SECURITY COUNCIL RESOLUTION S/RES/1373 (2001)

The governing reason for the Court to retain the ban on the LTTE was because the LTTE resorted to terrorist acts during the armed conflict. This fact alone warrants the application of Security Council Resolution 1373 in all its dimensions. This is the significance of the ruling by the Court. This means that all States and especially Sri Lanka, are bound to comply by the provisions in Resolution 1373 if global terrorism is to be addressed.

SC Resolution 1373 states as follows:

1. Decides that all States shall:(a) Prevent and suppress the financing of terrorist acts;(b) Criminalize the wilful provision or collection, by any means, directly orindirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;(c) Freeze without delay funds and other financial assets or economicresources of persons who commit, or attempt to commit, terrorist acts or participatein or facilitate the commission of terrorist acts; of entities owned or controlleddirectly or indirectly by such persons; and of persons and entities acting on behalfof, or at the direction of such persons and entities, including funds derived orgenerated from property owned or controlled directly or indirectly by such personsand associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territoriesfrom making any funds, financial assets or economic resources or financial or otherrelated services available, directly or indirectly, for the benefit of persons whocommit or attempt to commit or facilitate or participate in the commission ofterrorist acts, of entities owned or controlled, directly or indirectly, by such personsand of persons and entities acting on behalf of or at the direction of such persons;

2. Decides also that all States shall:(a) Refrain from providing any form of support, active or passive, to entitiesor persons involved in terrorist acts, including by suppressing recruitment ofmembers of terrorist groups and eliminating the supply of weapons to terrorists;(b) Take the necessary steps to prevent the commission of terrorist acts,including by provision of early warning to other States by exchange of information;(c) Deny safe haven to those who finance, plan, support, or commit terroristacts, or provide safe havens;(d) Prevent those who finance, plan, facilitate or commit terrorist acts fromusing their respective territories for those purposes against other States or theircitizens;(e) Ensure that any person who participates in the financing, planning,preparation or perpetration of terrorist acts or in supporting terrorist acts is broughtto justice and ensure that, in addition to any other measures against them, suchterrorist acts are established as serious criminal offences in domestic laws andregulations and that the punishment duly reflects the seriousness of such terroristacts;(f) Afford one another the greatest measure of assistance in connection withcriminal investigations or criminal proceedings relating to the financing or supportof terrorist acts, including assistance in obtaining evidence in their possessionnecessary for the proceedings;(g) Prevent the movement of terrorists or terrorist groups by effective bordercontrols and controls on issuance of identity papers and travel documents, andthrough measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;

The sentiments and near identical opinions were expressed by the United States Supreme Court in the case of Holder v. Humanitarian Law Project, when the “…court voted 6 to 3 to uphold a federal law banning ‘material support’ to foreign terrorist organizations. The ban holds, the court explained, even when offerings are not money or weapons but things such as ‘expert advice or assistance’ or ‘training’ intended to instruct in international law or appeals to the United Nations” (Washington Post, June 22, 2010). Chief Justice John G. Roberts Jr. in writing the majority opinion said that those challenging the ban “simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated terrorist organization – even seemingly benign support bolsters terrorist activities of the organization… (the law) is on its face, a preventive measure – it criminalizes not terrorist attacks themselves, but aid that makes the attack more likely to occur…” (Ibid).

CONCLUSION

The significance of the European Union’s Court ruling is that the process gave the LTTE the opportunity to state its case which was that the LTTE was engaged in an armed conflict with the Government of Sri Lanka and consequently, their actions should be judged under provisions of International Humanitarian law. This admission is no different to the opinion expressed in 2008 that the conflict in Sri Lanka was an armed conflict and therefore, the applicable law is International Humanitarian Law related to Non-International Armed Conflict. Furthermore, the UN appointed Panel of Experts (Darusman Report), and the Report of the Office of the Human Rights Commission (OISL), also advocated a similar approach to address accountability. Despite all attempts, successive Sri Lankan Governments have failed to adopt this approach and instead, continue to present the conflict as one between the State and a Non-State actor, perhaps influenced by the humanitarian approach adopted by Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC).

The significance of the European Union’s Court proceedings was that it gave the Court the opportunity to inform the LTTE that the justification to retain the ban on the LTTE was because the LTTE resorted to acts of terrorism during the armed conflict, based on the Geneva Conventions of 1949 and the Additional Protocols of 1977 that prohibit terrorist acts regardless of the motivations for the armed conflict. Therefore, by implication, as long as the LTTE remains designated a terrorist entity all Member States are required to comply with all the provisions of Security Council Resolution 1373.

This means that Member States need to ensure that provisions are incorporated in domestic law to prevent acts such as financing of terrorists; criminalize collection of funds by their nationals; freeze funds and other assets; prohibiting their nationals from making funds or other resources available to persons who commit or attempt to commit terrorist acts; refrain from providing any support active or passive; deny safe haven; prevent those who plan terrorist acts from using their territories etc. as cited in Resolution 1373.

Since the Prevention of Terrorism (Temporary Provisions) Act (No. 48 of 1979) became law several decades prior to Resolution 1373, it is incumbent on the Sri Lankan Government to upgrade the PTA of 1979, if Sri Lanka is to fulfill its obligations to the UN. Furthermore, the fact that countries such as U.K. and some EU Member States knowingly permit the LTTE to conduct activities that contravene the provisions of Resolution 1373 means they are not only guilty of violating the US Supreme Court’s interpretation of Resolution 1373 cited above, but are also complicit in turning a blind eye to the activities of the LTTE in their respective territories.

A matter of extreme irony is that while the European Parliament’s Resolution on Sri Lanka calls for “the repeal of the PTA (as) a key condition of Sri Lanka’s status as a GSP+ beneficiary country”, it ignores the fact that because the intent of the PTA as well as Resolution 1373 were to prevent terrorist acts, and a significant proportion of the provisions of Resolution 1373 resonate with those in Sri Lanka’s PTA. Therefore, since the EU and Sri Lanka together with the rest of the global community have to fulfill the provisions of Security Council Resolution 1373, it makes no sense to repeal the PTA and comply with Resolution 1373. This anomaly needs to be clarified before rushing to repeal the PTA and implement legislation that embodies provisions of Resolution 1373.

The significance of the ruling by the European Court is that because the LTTE resorted to terrorist acts, it follows that it is in violation of Security Council Resolution 1373. This ruling therefore, gives the Sri Lankan Government the opportunity to set up a special unit within the security establishment that should collaborate with Interpol to implement the full scope of Resolution 1373 if the influence and activities of the Tamil diaspora are to be neutralized.