Terrorists win legal battle: How significant is the lifting of the EU ban on LTTE

The terrorists win the day. Petitions show the way. Legal snags are future dangers. Our men have failed to show the links. The 16^th October 2014 judgment of the ECJ has annulled the restrictive measures imposed by the EU in 2006 against the LTTE. Before we make reference to the annulment exactly what were these restrictive measures and how far did the EU adhere to them. We are well aware that LTTE continued to be funded by the same organizations that are using the funds to project itself as the human face of terror with Prabakaran now dead. Nevertheless, what the verdict does show is the poor performance by Sri Lanka’s External Affairs Ministry for not taking action when LTTE hired lawyers in 2011 when it was supposed to be dead and defeated and not raising objections when the case was taken up by the court in February 2014. Immediately after 2009, LTTE did not even have foster parents. Now with the verdict LTTE has suddenly found a host of surrogate mothers celebrating the court verdict. EU nations have much to answer for in allowing a legal snag likely to reverse much that has been gained unless that was the objective all along!

WHY THE SUPPOSEDLY DEAD LTTE PETITIONED THE ECJ IN 2011

In May 2006, the 700 member EU Parliament from 25 Member states made an unanimous resolution to freeze LTTE assets in all EU member states. They also declared a travel ban in 2005. In fact the LTTE delegation of 2006 arriving in Geneva for peace talks was careful not to travel to any EU member state except Norway which is not a EU member and neither is Switzerland.

NorwaY with 3 Scandinavian countries who were members of the EU used the excuse that LTTE was engaged with GOSL to stave off banning LTTE as terrorists!

The motion on 17 May 2006.

http://www.europarl.europa.eu/sides/getDoc.do?language=EN&type=MOTION&reference=P6-RC-2006-0281

• Geoffrey Van Orden, Charles Tannock, Thomas Mann, Philip Bradbourn and Bernd Posselt, on behalf of the PPE-DE Group
• Pasqualina Napoletano, Robert Evans, Neena Gill, Emilio Menéndez del Valle and Elena Valenciano Martínez-Orozco, on behalf of the PSE Group
• Elizabeth Lynne, Sajjad Karim and Marios Matsakis, on behalf of the ALDE Group
• Jean Lambert, Raül Romeva i Rueda, Gérard Onesta and Frithjof Schmidt, on behalf of the Verts/ALE Group
• Eoin Ryan, on behalf of the UEN Group

18^th May 2006 Members of the European Parliament brought a resolution on the situation in Sri Lanka. The outcome of that Resolution was

• EU declares that LTTE is not the sole representative of the Tamil people
• EU calls for the immediate halt to LTTE illegal fund raising
• EU called on the LTTE to allow “political pluralism and alternate democratic voices”
• EU called member states to “do everything in their capacity in order to stop all illegal attempts by the LTTE to uphold a system of forced taxation among sections of the Tamil community living in the European Union”.
• EU condemned LTTE’s unilateral refusal to participate in talks and called upon LTTE to resume peace negotiations.
• EU condemned the LTTE’s renewed campaign of attacks.
• EU called on the LTTE to prepare to decommission its weapons and reach a final settlement
• EU deplored the gross violations of the CFA (in particular the LTTE sea attack on May 11, 2006 on the Sri Lankan Navy putting SLMM also in grave danger)
• EU called for the immediate halting of recruitment of children as soldiers by the LTTE

The LTTE was termed a terrorist organization on 30 May 2006. The 25 EU member states froze LTTE financial assets, stopped provision of funds directly/indirectly to the LTTE and enforced a travel ban.

THE SUPPOSEDLY DEAD LTTE PETITIONS ECJ IN 2011

Can petitions by terrorist sympathizers engaging astute legal counsel penetrate loopholes in international law? Yes, this is what exactly happened in 2011 when the 2006 EU ban on the LTTE was argued through a petition by LTTE sympathizers.

The petition even argued that LTTE cannot be considered a terrorist organization.

LTTE’s lawyer was Victor Koppe.

https://www.youtube.com/watch?v=GL90-stEWUA

https://www.youtube.com/watch?v=vN6J0cPhZkA

His argument was that, given Sri Lanka’s conflict is defined as an armed conflict, acts of war are not chargeable as criminal or terrorist acts (criminal law cannot be applied to armed conflict). How can LTTE explain why it attacked non-military targets which is a violation of armed conflict?

THE EUROPEAN COURT OF JUSTICE DECIDES

On 16^th October 2014 the European Court of Justice instructed the EU to quash restrictive measures imposed in 2006 against the LTTE w.e.f January 2015.

The ECJ kept LTTE assets ‘temporarily’ frozen.

The EU has been given 2 months to come out with new restrictive measures about the LTTE. It means Sri Lankan officials now need to wake up from slumber and provide the EU member states the evidence, statistics and intelligence to ensure that there are no further legal loopholes LTTE lawyers can penetrate.

Despite LTTE being banned by EU and UK, LTTE was operating offices openly. So, how far have the imposed restrictive measures of 2006 was actually enforced and applied especially given that LTTE fronts declare they have no association with the LTTE?

The LTTE did not win any of its key arguments lodged in 2011. LTTE remains classified as a terrorist group. However, the ECJ has made annulments on fundamental procedural grounds.

Therefore, work is now cut out to ensure that even under Common Position 2001/931 (para 226) LTTE remains classified as a terrorist organization.

The court rejected LTTE’s claims and the court reiterated that

1. In international law, notions of armed conflict and terrorist are compatible
2. Regulation 2580/2001 is applicable to terrorist acts committed within the context of armed conflicts (para 81)
3. LTTE cannot invoke armed conflict between itself and the GOSL to exclude itself from the application of Common Position 2001/931 for any terrorist acts
4. LTTE cannot object to third party position other than UN Security Council

Nevertheless, with Sri Lanka being a concerned party did we have representation to make objections? If there was none, obviously the Court looking at the arguments would have to accept the LTTE lawyers argument which is why the Court declared ‘The LTTE states, correctly, that the list of facts placed at the top of the grounds for the contested regulations does not constitute a competent authority” (Para 103).

The lack of counter arguments may have also been why the Court found fault with the EU for depending on India’s position on the LTTE.

The court rightly is not a body to be carrying out verifications or investigations. It interprets the arguments placed before them. Nevertheless, it is a total error on Sri Lanka’s representatives for not having studied the bans of nations and the clauses which could have been strengthened given that Sri Lanka has decided to declare bans on LTTE fronts. The legal luminaries and pundits in the Sri Lankan external affairs ministry must foot the blame.

The court says that its decision to remove the restrictive measures on the LTTE were based on :

• At least every six months a review should have been done by competent national authorities and the lack of such the Court claims that the EU has based their decisions on information derived from the press and internet. {This is an area that Sri Lanka could have easily helped to provide EU member nations with statistical data and intelligence of LTTE’s crimes and links to over-seas LTTE fronts}
• There was reference to the Permanent People’s Tribunal on Sri Lanka which claims that the UK and US were complicit in genocide of Sri Lankan Tamils.

If a Court that bases its argument on what is placed before them and if Sri Lanka has not given sufficient evidence to show that LTTE killed Tamils too obviously the Court would end up having no other choice but to accept the LTTE version of genocide. It is a tragic eventuality but it is also realistic and should immediately wake up Sri Lanka’s leaders to demand from the External Affairs what the officials have been upto. There is a case now on in Sri Lanka citing Penal Code section 120 against the TNA for using ‘genocide’ term and these examples all need to be taken into consideration.

WHAT SRI LANKA’S OFFICIALS NEED TO DO  

• Immediately put together statistics, evidence, information and intelligence to prepare case to argue against the ECJ decision and engage EU nations to draw up proper anti-LTTE communication legally sufficient enough to hold in any international court of law
• Examples of how LTTE has despite numerous ceasefires and peace talks indulged in violence and terror needs to be highlighted with examples and witness statements as well as raw footage of these incidents including police reports
• Examples of Global Tamil Forum and Nediyavan Faction bringing together all scattered LTTE hardcore cadres as well as the Gopi incident needs to showcase how LTTE cadres have been posing as civilians and travelling freely under forged passports attempting to revive the LTTE. Their links to the proscribed LTTE fronts need to now be brought into the open officially through every diplomatic channel.
• Engage the EU nations on the consequences of lifting the ban on the LTTE. Need for MEA to highlight that LTTE could not have carried out an armed struggle if not for the funds raised by LTTE organizations abroad to purchase arms, to lobby foreign governments, to raise funds, to carry out false propaganda etc. examples of each of these should be provided by the MEA to all EU member nations.
• EU member states need to be asked and shown through statements how alleged LTTE fronts claimed they had no ties to LTTE but following the ECJ ruling these fronts are now celebrating.
• EU member states need to be shown the monetary transactions sent via these alleged LTTE fronts and asked exactly what type of development took place with these funds in North of Sri Lanka prior to May 2009 or even after. The development that the Tamils of the North enjoys today is NOT from Tamil Diaspora funds but from loans and grants taken by the GOSL.
• If the Eezham Tamils in Switzerland, the Swiss Council of Eelam Tamils (SCET) claim that Eezham Tamils should not be confused with LTTE why have they engaged legal firms to remove the proscription by foreign governments against the LTTE – Sri Lanka needs to continuously demand answers?
• Nediyavan banned by the GOSL under UNSC 1373 established the International Council of Eelam Tamils (ICET) (www.iceelamtamils.info) of which Swiss Council of Eelam Tamils was one. ICET co-chair is Ranjan Sri Ranjan (former president of Canadian Tamil Congress), Krisna Saravanamuttu is the spokesperson of ICET. She is also spokesman for the NCCT (national council for Canadian Tamils). Lathan Suntharalingam was a key initiator of the petition in 2011. Rajeev Streetharan was the main initiator; he is the son of top LTTE leader in the US, Muthuthamby Sreetharan, the cofounder of Tamilnet
• LTTE’s lawyer – Koppe’s argument is that the LTTE is an organisation fighting for the fundamental rights of the Tamils, which is acceptable to the charter of the UN and the international treaties – this argument needs to be challenged with proof of the scores of Tamil leaders LTTE has assassinated.
• MEA needs to ask who are the LTTE figures that are representing the LTTE and hiring lawyers if the argument is that the LTTE is defeated. If it was defeated there is no requirement for any legal removal unless there are LTTE elements unable to function because of the international legal snags. These are crucial arguments that Sri Lanka’s MEA should have been lobbying.
• Sri Lanka’s lawyers and Foreign Ministry officials and envoys need to also graphically show the connections of the proscribed LTTE fronts, their heads and the arrests as well as the grounds on which they have been accused to argue when the appeal is taken up.

QUESTIONS FOR SRI LANKA’S MEA

• Why did the MEA and envoys stop trying to push EU drawing them to the links of LTTE fronts with the LTTE? Why have our efforts all been lukewarm without the needed punch?
• Why did Sri Lanka’s MEA and its representatives in Geneva as well as all envoys to the EU states not have a strategy to continue to keep the EU informed and provide them all information on who constituted ‘LTTE’ so that the EU could not ignore the members of the current proscribed groups and their leaders who are now proscribed under UNSC 1373.

It is unfortunate that for lack of preparation, lack of keeping tab on the manoeuvrings of the LTTE Tamil Diaspora, failure to keep the diplomatic community and foreign governments informed and updated as well as urge them to renew and revaluate operational bans as well as attempt to push for further bans, the MEA stands guilty.

As for the foreign governments in question it would also be interesting to know why envoys and officials of a sovereign and democratically elected government do not stand a chance against representatives of the LTTE Tamil Diaspora – is it because they look better than our officials….we are really curious to know why foreign governments and officials prefer siding LTTE Tamil Diaspora against a sovereign nation.

Given the inference to internet/website sources, it gives a good advantage to Sri Lanka against the tirade of lies concocted through reports, documentaries, books, panels funded by pro-LTTE entities which have been even quoted by the UNHRC and likely to play a major role in the forth coming panel report.

– by Shenali D Waduge