Getting tough on the Tigers

[TamilNet, Monday, 10 November 2003, 00:31 GMT]
President Chandrika Kumaratunga’s strategy for holding fast to the reins of power in Colombo is fundamentally in conflict with sustaining the peace process in Sri Lanka, Tamil politicians and commentators say. The President and her allies assert that the Sri Lankan state should get tough on the Liberation Tigers to safeguard Sinhala national interests. As her standoff with Prime Minister Ranil Wickremesinghe took a new turn Sunday, it appeared inevitable that she might match her words with deeds in tune with the sentiments of her increasingly hawkish Sinhala constituency.

“Once Sinhala nationalists start, there is no limit to how tough they could get on the Tigers. In their language it means going back to full-scale war. This is the grave danger we are faced with now. Also the President’s actions this week clearly showed the Tamil people the kind of thin constitutional ice on which the international community expect us to skate to achieve our legitimate aspirations”, said Mr. Aiyathurai Nadesan, senior political columnist for the Sunday edition of the Virakesari, the Tamil newspaper with the largest circulation in Sri Lanka.

Tamil fears of a return to war aren’t unfounded.

Last Thursday, Mr. H. L de Silva, the eminent Sinhala lawyer and constitutional expert who is a close confidante of and a legal advisor to President Kumaratunga, argued that a just peace can be achieved only if the Sri Lankan state "exercises its sovereign right to retake territory and property unlawfully taken" by the Liberation Tigers and "punish those who had taken up arms against the State".

‘Get tough on the Tigers’ insists the JVP, the only party in the Sri Lankan Parliament that came out in support of her actions along with her own People’s Alliance this week. The Sinhala nationalist and extremist press, such as the mass circulation Divaina, echo the sentiment on a daily basis.

“Now that the Ministry of Defence is in her control, ‘getting tough’ could mean many things from denying transit to Tigers between non-contiguous areas of their control and refusing helicopters for their leaders going abroad from the Vanni”.

“That a government with a mandate for peace was in charge of the MoD acted as a moderating influence on the military on the ground – particularly in managing and controlling potentially volatile situations that are inevitable in such cease fires”, points out Mr. Nadesan.

Tamil politicians fear that President’s control of the MoD could dangerously exacerbate a lot of resolvable issues on the ground in the northeast.

“She cannot ignore the Sinhala nationalists now, at this particular juncture where she feels isolated from everyone else. So she will have to show some kind of consistency with her policy of getting tough on the Tigers in the Sinhala national interest, which she has consistently re-iterated since the peace process began last year. But the ‘getting tough’ rhetoric can lead her on to war eventually, cheered by her Sinhala nationalist supporters”, observes Mr. Sivasakthi Anandan, Tamil National Alliance MP for Vanni.

Following are excerpts of Mr. H. L de Silva’s felicitation lecture ‘Politico – Legal and Ethical Aspects of the Separatist War in Sri Lanka’ at the Bandaranaike Memorial International Conference Hall to mark the fiftieth year anniversary of his call to the Bar. The lecture was organised by the Bandaranaike Centre for International Studies in association with the Law and Society Trust on 6 November 2003. Sri Lanka’s ex foreign minister and a close associate of President Kumaratunga, Mr. Lakshman Kadirgamar presided.

“One of the distressing features in the contemporary debate on the ongoing security crisis and political instability in Sri Lanka is the lack of any in-depth analysis of the problems that beset us and the absence of any serious consideration of matters of ultimate concern that affect the ending of the prolonged armed conflict. Unhappily all that the people of Sri Lanka seem to be conscious of is the extent to which inter-party rivalries and personality conflicts dominate political debate and the degree to which mutual recriminations preclude rational consideration of serious issues. Pre-eminent among such important issues are the politico-legal, ethical and moral aspects of the disputes and the manner of their resolution, especially the question of secession from the existing Sri Lankan nation State, sometimes deceitfully concealed by such artifices as “reinventing” or “re-imagining” the State. If the moral and ethical issues involved in the claims of ethno-nationalism and its inevitable effects are not adequately addressed, there is little hope of fair and just terms of settlement reached and a durable peace concluded.

More importantly there is a likelihood of serious errors and grave injustices being caused to the people of Sri Lanka in deciding on the terms of the final settlement which may become irretrievable. They’re likely to have highly detrimental social, economic and political consequences for future generations of Sri Lankans, quite apart from the permanent injury done to the psyche to the Nation.

A prolonged cease-fire without any clear idea of the foundational bases of the final peace settlement is a grave hazard. The reason being that even provisional or temporary arrangements for the interim period, are made on certain assumptions, which are vague or deliberately left unexamined but which in course of time tend to solidify, acquire permanence and become established facts which are irreversible. If not carefully thought out, they prove to be highly damaging to the national interest and turn out to be insurmountable impediments to the achievement of peace. The disinclination to identify what are termed “core issues” by the Negotiators of the GOSL even after the lapse of one and a half years, may well be due to a reluctance to admit their intractable nature. Some may even wonder whether there is an attempt to conceal the existence of a secret understanding reached with the LTTE the nature of which cannot be revealed at the present time for fear of encountering uncompromising public opposition to it and the resultant unraveling of “the peace process”, on which many have pinned their faith and hopes for the future of this country.

First of all, may I say that there would be little disagreement that the armed conflict – whether one describes it as a rebellion , insurrection, insurgency or as a civil war – is essentially directed to the creation of a separate state- either immediately or in the near future – formed out of the northern and Eastern provinces of what is at present the undivided State of Sri Lanka.

The State for its part has responded to the challenge to its authority by using its own armed forces in an attempt to repel these hostile acts, leading to the tragic deaths of thousands of its own citizens, whether they be civilians or members of the armed groups or of rebels who are engaged in the hostile acts, and the destruction of property, loss and damage which the country could ill afford. The attempt to suppress the rebellion, (for variety of reasons,) has not met with the desired measure of success.

The government has been progressively losing control over the so-called cleared areas after the cease-fire and the incredibly absurd provisions of the MOU of which the LTTE has taken full advantage without any loss of men or materials.

Under the MOU the LTTE had secured rights of entry for their cadres into the cleared areas in civil attire and without arms to carry on what was termed ‘political activity’ which has in effect meant a consolidation of their regime.

It is against this backdrop of events that one has to consider the ethical and moral issues pertaining to the armed conflict in Sri Lanka that has been temporarily suspended.

Despite its beguiling implications do we accept “peace at any cost” as a morally justifiable attitude to these circumstances? Do we consider the prevention of deaths of soldiers and civilians and the avoidance of economic loss and damage to property as an overriding value or as sufficient justification for disregarding or ignoring an impending thread to the Sovereignty of the State? Is the absence of violence the paramount value and the preservation of human life the all-important consideration whatever be the consequences? If that be so is the destruction of territorial integrity of the State and the humiliating subjugation of a significant section of the Sri Lankan Nation deemed a trivial matter, of little consequence or value?

There can be no evasion of this issue by reference to such equivocal expressions as separate governmental systems “within a united Sri Lanka” or “a loose federation with asymmetrical power sharing” which contemplate a confederation of two sovereign States in the proposed constitutional structure.

The basic principles in accordance with which Western moral philosophy sought to assess the legitimacy of military action has been called just war theory which may now be said to have broad based acceptance by the international community of States though questioned by some moral philosophers.

It has been greatly influenced by such thinkers as Cicero, (the Roman philosopher and orator), the Christian theologians St. Augustine and St.Thomas Aquinas and Dutch jurist Grotius. It received legal recognition before the International Military Tribunal at Nuremberg.

Augustine recognized War as a natural and necessary instrument for a leader of a Nation to uphold peace. But there were to be stringent conditions to be satisfied before its use was permissible. Indeed he held the view that the sole reason and justification for it was the desire for peace and said, “peace is not sought in order to provide war, but war is waged in order to attain peace”. So the phrase “War for Peace”, though sought to be ridiculed by some, has sound philosophical and theological credentials.

The UN charter also confirms the general acceptance of the just war theory by the community of nations by recognizing in Articles 2(4) and 51 of the Charter, the inherent right of each sovereign nation to self -defense. The right of a nation to engage in defensive military actions has been upheld by the International Court of Justice in the case of Nicaragua versus the USA.

Although some jurists appear to regard the prohibition contained in Article 2 paragraph 4 against threat or use of force against the territorial integrity and political independence of any state as an obligation cast only on member states, the General Assembly Resolutions which relate to Article 1 Para 2 - the principle of equal rights and self-determination of peoples make it clear that in the exercise of the claimed right of the self-determination, even by non state actors, the territorial integrity of the State cannot be violated if they have the right to participate in the political process. It is clear therefore that under the Charter a State may resort to armed force and military action in seeking to protect its territorial integrity. It was also an incident or attribute of State Sovereignty which is also recognized by the UN Charter (vide Article 2 Para 7) which ensured non-interference by the UN in regard to matters falling within the domestic jurisdiction of any State.

Applying these criteria, the Government of Sri Lanka, as one that was deemed legitimate from a moral stand point and democratically elected, was, according to the just war doctrine, entitled, indeed obliged in the circumstances it was placed, to wage war against rebel groups, including the LTTE by reason of its right and duty to defend itself and protect its citizens against wrongful attacks designed to cause death and injury and destruction and damage to property. It was indeed its duty to exercise its Sovereign right to retake territory and property unlawfully taken and punish those who had taken up arms against the State.

Such unlawful acts constitute just causes for the war against the rebels; and for a just peace to be concluded, the aforesaid objectives have to achieved. It is perhaps necessary to stress this considering the stance of abject submissiveness adopted by the government negotiators and the indecision and vacillations in the defence of the state.

A moral dilemma arises especially for Christians and no doubt for many others, whether the prevention of violence and aggression through the enforcement of law and order and the imposition of punishment for wrongdoers is opposed to the central tenets of their religion. How does one reconcile the obligation to preserve law and order with the religious teachings of love and compassion, forgiveness of wrongdoers and the command to seek reconciliation with one’s enemies and the need for heeling broken relationships among human beings? It has been argued that such attitudes need not necessarily be in conflict or incompatible because acts of prevention of wrongdoing also have benevolent objectives and purposes despite their appearance as acts of vengeance”.