Notes On Conference on the Conflict in Sri Lanka

Proceedings of the International Conference on the Conflict in Sri Lanka

Sri Lanka is comprised of two main ethnic groups Sinhalese and the Tamils . This division has existed for many centuries. Prior to the arrival of the Portuguese in 1505, the Sinhalese and Tamils governed themselves with their own kingdoms, with the Tamil kingdom located in the north and east, and the Sinhalese kingdoms in the south.

The Portuguese and the Dutch who colonoised the area administered the Tamil and the Sinhalese regions as separate areas, being conscious of the religious and cultural divide between the two. With British rule in 1833, however, came a centralised administration of the island for the sake of administrative convenience.

The grant of independence in Sri Lanka by Britain in 1948 preserved the system of administration albeit with substantial guarantees for minority groups [5]. The Constitution provided that no law could confer on persons of any community or religion and privilege or advantage disability to which other communities or religions were not subject. A system of checks and balances, the hallmark of Westminister-style system of government, was also enshrined, including a right to appeal to the Privy Council. Despite the attempts on the part of the British of safeguard the rights of minorities, including Tamil population, it soon became apparent that these safeguards would be insufficient.

Since Independence the Tamil people have maintained that they have suffered discrimination at the hands of the Sinhalese-dominated Government. They claim that 40 years of Sinhalese rule has meant suppression and oppression of the Tamil language, culture, and tradition. In 1948 and 1949 large numbers of Tamils were denied citizenship of the newly independent Sri Lanka, and were thus disenfranchised [6] -- many remain without citizenship to this day. In 1956 legislation was enacted which provided that Sinhala would be the only `official' language in Sri Lanka [7], Sinhalese and Tamil would be the official Languages of the country and the resolution adopted 1944 by the State Council to the same effect. As the official administration was conducted in Sinhalese, this change meant that proficiency in that language became a requirement for public service. Furthermore, systems were adopted

In 1972 Sri Lanka became a Republic and a new Constitution without the guarantees of minority rights contained in the 1948 was enacted. The new Constitution granted the status of `official language' to Sinhala [8] and elevated Buddhism to the `foremost place' among religions, [9] thus granting pre-eminence and priority status to the language and religion of the majority community. A second Constitution in 1978 redressed `this imbalance somewhat by according to Tamil language the status of a `national' language [10]. However, Sinhala remains the only `official language' [11] and Buddhism retains its `foremost' position among religions [12]. Despite the fact that the Tamil language is recognised and afforded some constitutional protection, the protection has not been realised due to an inadequacy of implementation within the Sinhalese-dominated Government and public service.

Initially, the Tamil community sought to achieve a due measure of recognition within Sri Lankan society by peaceful means. In the mid 1970s, in an attempt to redress policies which made it impossible for Tamils to take a equal part of the life of Sri Lanka, the Tamil United Liberation Front (TULF) was formed. The TULF advocated separatism via negotiation and became the major opposition party in Parliament at the General Election in 1977. At the same time, however, a minority of Tamils began to resort to violence to achieve their political aims.

In 1983 the TULF was effectively removed from Parliament by the enacment of the sixth Constitutional Amendment which required the taking of an oath by members renouncing support for a separate state. Since the platform of the TULF included support for a separate state, the TULF members forfeited their right to retain their parliamentary seats. As a result, Tamil participation in Sri Lanka life was effectively removed as their elected representatives could no longer act on their behalf through the normal parliamentary process. This situation has hardly encouraged Tamil involvement in the political life of the nation which is undoubtedly crucial for a resolution to the current conflict.

Since the 1983 Constitutional Amendment, increasing numbers of Tamils have concluded that negotiations will not work, and that armed struggle is the only solution to their situation. For its part, the Government would appear to have chosen to pursue a military solution, on the grounds that the militants must be crushed before any attempts at negotiation can be made. However, the Government's attempts to control the problem by strong legislative, administrative and military measures have not worked - indeed, they appear to have hardened Tamil resistance. Not only has much more of this campaign resulted in overwhelming civilian casualties, the actions of Government, whether deliberately or anarchically, have resulted in the disappearances of large numbers of people including children. It is no answer to say that this has happened on both sides, if it has. The Government's action's cer

In 1983, after many years of frustrated attempts at obtaining equal treatment, the Liberation Tigers of Tamil Eelam (LTTE) -- the name of the ancient Tamil kingdom, in the north -- took control of the northern part of the island and called for a separate state. In 1987 this area of Sri Lanka was placed under blockade by the State with many essential items including medical supplies and fuel being prohibited from entering the region. Since then, Sri Lanka has continuously been under declared state of Emergency and certain areas in the north have been declared prohibited zones [13], with the result that many of them same essential items have been prohibited from entering the region.

In April 1995 peace talks between the parties broke down. In December of that year a major push into the northern part of the country around Jaffna by Sri Lankan army displaced more than 500,00 Tamils from the Jaffna Peninsula and caused grave humanitarian crisis of unprecedented magnitude. In November the UN Secretary General Boutros Boutros-Ghali called for urgent humanitarian aid for the thousands of Tamil refugees who fled from Sri Lankan Government troops invading the Tamil homeland. The Sri Lankan Government expressed its displeasure at these comments and to date has refused to allow international relief agencies free access to the refugee camps.

The result of these policies is human suffering and despair. Long-term bombing campaigns have destroyed much of the infrastructure of the north, and allegations and counter allegations of victimisation of innocent civilians on both sides of the conflict. If the parties cannot or will not do it, the rest of the civilised world must cut through the propaganda save the people from this madness.

Since the civil war commenced there have been many attempts at finding a peaceful solution to the crisis. Each attempt has been marred with frustration, anger and eventual breakdown in negotiations. Independent reports from reputable Non-Governmental agencies, including Amnesty International, the Overseas Service Bureau and World Vision have cautiously put the blame for the consistent breakdown in peace negotiations at the door of the Government which refused to abide by the preconditions to the peace talks, namely the withdrawal from the Tamil homelands of Sri Lankan troops.

The right of self-determination The Tamils' call for "Self Determination" is at the heart of the war in Sri Lanka. Undoubtedly the principle of self-determination is one of the most vigorously disputed "group" rights in modern international law. It has generated vast quantities of literature, most of which has considered the issue in terms of decolonisation.[14] However, the principle of self-determination is not so confined and is increasingly regarded as being applicable to other instances including the rights of minority groups. The problem in each case is what the expression means to the group involved.

The term "self determination" occurs twice in the UN Charter, 15 albeit in the context that self-determination must be respected in principle. Subsequently, self-determination was elevated to the status of a Human Right in both the Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, both of which proclai]

All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development[16].

It is clear that self-determination is a collective rather than an individual right with a majority of a collection of individuals benefiting directly from its attainment. Furthermore, self-determination is regarded in various human rights instruments as a right of "peoples", not of nations or governments, so that self-determination must be seen as qualifying the right of governments to deal with "peoples" in ways which are inconsistent with their self-determination.

There appears to be an underlying assumption that "peoples", in the sense used in international instruments, is the same as "the minority", and that they have the same rights in international law. A group which may fit within the definition of "peoples" cannot cease to be such merely because a result of demographic or territorial change it become a minority of the population. This has been recognized to be the case for the Tamils by the widely respected International Commissions of Jurists, a representative of which is stated:

"The Tamils could be considered to be a "people". They have a distinct language, culture, a separate religious identity from the majority population, and to an extent, a defined territory.... The application of the principle of self determination in concrete cases is difficult. It seems nevertheless, that a credible argument can be made that the Tamil community in Sri Lanka is entitled to self determination... What is essential is that the political status of the "people" should be freely determined by the "people" themselves.[17]

Before there can be any meaningful attempt to resolve the conflict in Sri Lanka, the underlying cause of the conflict, namely the Tamil struggle for equity and eventually some form of self expression as a people, must be recognized as valid. This requirement also involves recognizing the armed struggle of the Tamil people arose as a response to decades of oppression by the Sinhalese majority within the confines of a unitary Sri Lankan state. This is not to say that the armed struggle is to be commended or encouraged, or that it is excusable - indeed it must be unconditionally condemned as a destroyer of innocents and ultimately futile to achieve the desired goal. I merely say that the struggle is understandable. After all, if the majority was not willing to embrace the minority and grant them due recognition, a dignified status and an equal opportunity to a fair chance, they must se

The plea by the Tamils for self determination should be respected by the community of states. It is true that self-determination does imply some erosion of sovereignty and in some places it may so liberate national minorities as to give them separate statehood, and membership of the United Nations. However, the existing list of UN members and non-member states is not inviolate, and there are, and there will be cases when the price of untrammeled sovereignty, calculated as it is inhuman misery and suffering, is too high. The undeniably tragic example of Bosnia Herzegovina aside, the consequences in most cases where the self government has been granted has not been disaster[18]. The enjoyment of human rights can be increased in many cases by recognizing the right of peoples to some form of autonomy, even independence -- this much is evident from the UN charter.

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