Sri Lanka: Self-determination as Mode of Reparations for Grave Violations of International Law in Tamil Eelam

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The principle of self-determination has direct bearing on the political future of the Eelam Tamil people—many of whom who see themselves to constitute a nation. It is the foundation of the international order, and constitutes a fundamental human right—a peremptory norm holding the same status as the prohibition against such crimes as torture and genocide. As a UN member state, Sri Lanka has the obligation to facilitate the exercise of the right to self-determination. However, as Sri Lanka has prevented the exercise of that right, it is the responsibility of the international community to uphold Eelam Tamils’ right to freely determine their own political destinies.

Self-determination was a founding value of the League of Nations under the initiative of American President Wilson, and re-emerged after World War II. Article 1.2 of the UN Charter underscores « friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. » In the era of decolonization, UN General Assembly Resolution 1514 (from December 1960) asserted that « All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic social and cultural development. » In August 2014, the General Assembly adopted the “Interim report of the Independent Expert on the promotion of a democratic and equitable international order” (A/69/272). It stated, in part:

“The implementation of self-determination is not exclusively within the domestic jurisdiction of the State concerned, but is a legitimate concern of the international community. Neither the right of self-determination nor the principle of territorial integrity is absolute. Both must be applied in the context of the Charter and human rights treaties so as to serve the purposes and principles of the United Nations.”

Thus, the principle of self-determination is acknowledged throughout international legal literature as a jus cogens norm, a foundation of the international order that is the responsibility of the entire international community to uphold.

 It is a common misconception that the self-determination of the Eelam Tamil people is associated with violence and terrorism. In fact, the assertion of this right first came democratically, as a response to decades of Sri Lankan state disenfranchisement and violence against Tamil people in the North, East—and the Up-Country, where a campaign of nonviolent civil disobedience for the right to citizenship was also being fought. In 1976, the Tamil United Liberation Front (TULF) adopted the Vaddukodai Resolution, which stated, in part,

 “that the State of Tamil Eelam shall consist of the people of the Northern and Eastern provinces and shall also ensure full and equal rights of citizenship of the State of Tamil Eelam to all Tamil speaking people living in any part of Ceylon and to Tamils of Eelam origin living in any part of the world who may opt for citizenship of Tamil Eelam.

The 1977 Sri Lankan elections constituted a referendum on this notion. The TULF election manifesto read, in part:

“The Tamil Nation must take the decision to establish its sovereignty in its homeland on the basis of its right to self-determination. The only way to announce this decision to the Sinhalese government and to the world is to vote for the Tamil United Liberation Front. The Tamil speaking representatives who get elected through these votes, while being members of the National State Assembly of Ceylon, will also form themselves into the ‘National Assembly of Tamil Eelam’ which will draft a constitution for the State of Tamil Eelam and to establish the independence of the Tamil Eelam by bringing that constitution into operation either by peaceful means or by direct action or struggle.”

The North and East elected the TULF, giving it second-place status (or official opposition) in the parliament. The 16 MPs were banned from Parliament. The failure of democratic mechanisms to express the popular will of Tamils provided the impetus for an armed attempt to achieve self-determination. The LTTE established a de facto state of Tamil Eelam, also carrying forward the Vaddukoddai programme by working to eliminate caste and gender discrimination within its territory.

Yet, between 1983 and 2009, at least 100,000 Tamils were killed, and yet another 146,000 went unaccounted for during the final days of the conflict, due to Sri Lankan military activity. The express purpose of this state violence was to prevent the exercise of the right to self-determination.

General Assembly Resolution 2625 (XXV), “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” states: “Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.”

The international crimes committed in Sri Lanka had the objective of destroying the de facto state of Tamil Eelam, and of depriving Eelam Tamils of the human right of self-determination, freedom, and independence.

Following the military defeat of the LTTE in 2009, all space for discussion of self-determination closed within Sri Lanka. Nonetheless, in the Tamil diaspora between 2009 and 2010, 208,000 Tamils in 10 countries voted to answer the question—yes or no— »I aspire for the formation of the independent and sovereign state of Tamil Eelam in the north and east territory of the island of Sri Lanka on the basis that the Tamils in the island of Sri Lanka make a distinct nation, have a traditional homeland and have the right to self-determination. » Over 99 percent voted “yes”, in these independently conducted, non-binding referenda, on the estimated basis of a 64% turnout of the total eligible diaspora population.

Thus, we observe that the right to self-determination is a fundamental principle of the international order, and has been since its inception. This principle is upheld throughout UN documents as the concern of the entire international community, and not any particular state. We observe that the Tamil people democratically voted to form a state of Tamil Eelam 40 years ago; that the closure of democratic space has led to a de facto state existing in recent memory; and that the diaspora has overwhelmingly reaffirmed its wish to have an independent state at a time when that notion cannot be safely expressed within its traditional homeland. The right to self-determination cannot be extinguished, but it has been consistently denied over decades of horrific state violence.

General Assembly Resolution 60/147, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” reads, in part: “Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.” Restitution for the denial of the right of self-determination includes the free exercise of that right, and a return to the freedom Tamils enjoyed within the de facto state of Tamil Eelam.

We, Tamils, affirm in accordance with both history and international law that our destiny is ours to decide. We call on all those who share the will to freedom to help uphold our human right to self-determination.

 

Other ressources :

Killing of Balachandran Prabhakaran: Genocidal war against Tamil
Uno 77th Session – 5th & 6th Cycle Review on Sri Lanka
http://cnrj.org/wp-content/uploads/2017/12/CRC-2018-Bharathi-1.pdf

Justice for the war affected tamil children
Uno 77th Session – 5th & 6th Cycle Review on Sri Lanka
http://cnrj.org/wp-content/uploads/2017/12/CRC-2018-AETF.pdf

La jeunesse Tamoules: Génocide, Trauma et prise en charge
Uno 77th Session – 5th & 6th Cycle Review on Sri Lanka
http://cnrj.org/tamouls-genocide-trauma-prise-charge/

Sri Lanka : A Prima Facie Case for Genocide
http://cnrj.org/sri-lanka-a-prima-facie-case-for-genocide/

International : Écho de l’intervention de l’ONG CNRJ à la 28ème session des Droits de l’Homme de Genève
http://cnrj.org/intervention-ong-cnrj-28eme-session-droits-homme-geneve/

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Reporter CNRJ Tamoul

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