By K.M.M.M. Jayathilaka
Liberation Tigers of Tamil Eelam (LTTE) lost its battle against the listing of LTTE as an international terrorist organization within Europe last year November. The General Court of European Union, on 24th of November 2021, dismissed the plea of European Political Subdivision of the Liberation Tigers of Tamil Eelam to repeal the decision of The Council of European Union (EU) to maintain LTTE on the European Union List of Terrorist Organization. EU and United Kingdom of Great Britain and Northern Ireland defended the plea.
The LTTE was originally listed as a terrorist organization by EU in 2006. In 2019, pursuant to the powers conferred by Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No. 2580/2001, EU decided to maintain the proscription on the basis that LTTE retains military and financial capacities coupled with the intent to conduct terrorist acts for the interests of the organization, despite its military defeat in 2009 in Sri Lanka. The above stance of EU was disputed by LTTE on two grounds. Firstly, International Humanitarian Law does not preclude recourse to means that fall under Article 1(3) of Common Position 2001/931 in the context of an armed conflict. Secondly, incidents referred to in paragraph 9 of the Statement of Reasons did not serve a terrorist aim, rather were aimed at ensuring the right of Tamil people to self-determination and their liberation from oppressions of Government of Sri Lanka. However, premised on Article 33 of the Geneva Convention, Article 4 (2) and 13 (2) of the Additional Protocol II to the Geneva Convention, LTTE V Council and Hamas v Council , the Court decided to retain the ban on LTTE.
“The LTTE is widely recognized to be one of the most proficient and dangerous terrorist groups in the world.” The extremely sophisticated international support network, in large part, enabled the LTTE to sustain its 30 year-long struggle towards separatism and at present, ensures that the LTTE is at the cutting edge of terrorist lethality and finesse. Therefore, curbing the transnational support structure through concerted national and international collaborations is the key to neutralize the extreme threat poses by LTTE to the sovereignty of nations and security of the international system as a whole. The judicial acknowledgment of proscription of LTTE by EU prompts countries to review their practices with regard to the legality of LTTE publicity and fundraising activities based on Security Council Resolution 1373 (2001). This can be viewed as an apt opportunity to rejuvenate existing international and national collaborations and thereby bringing global operations of LTTE to a grinding halt.
Proscription empowers EU member countries to confiscate or freeze funds and assets of the organization and to prohibit making funds and other resources available for the cause of the organization. In addition, proscription of an organization hampers its political life, because it equips member countries to curtail rights of group members to stand for political office, to have access to services and positions in public service, to vote in elections, to travel across national borders. Therefore, the decision of EU to maintain the proscription can be viewed as a significant blow to the LTTE, in view of the fact that majority of strongholds of the LTTE propaganda and fundraising activities hold European Union membership. It impairs efforts of the LTTE at harnessing political and economic support of European Union members for its aim of creating a separate Tamil state of Tamil Eelam in northeastern Sri Lanka, which will bring ongoing terrorist campaigns in Sri Lanka to a standstill.
Further, due to the marginalization at the international level, the LTTE is bound to face disadvantages in internationalizing their cause and legitimizing the claim for an independent state of Tamil Eelam through propaganda and infiltration of legislatures of Western jurisdictions. Responding to the argument of LTTE, the Court stated that neither the International Humanitarian Law, regardless of the motivation for the armed conflict, nor the principle of right to self -determination permit employment of means that fall under Common Position 2001/93. Above governing reasoning of the judgement starkly undermines some popular rhetoric of LTTE propaganda campaign, which are used to motivate contribution for the LTTE cause and to justify the commission of atrocities during the armed conflict. This, undoubtedly, will cause LTTE to suffer a major setback in their global propaganda campaign.
The General Court of Europe affirmed that in non-international armed conflict, as it was in Sri Lanka, 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. Accordingly, ruling out the principle of command responsibility, Article 6 of the Additional Protocol requires anyone charged with an offence to be tried in his presence and on the basis of individual penal responsibility. Due to the inability to locate and identify former combatants, which becomes a barrier to prosecution, the current effort of United Nations Human Rights Council (UNHRC) to collect evidence to exercise ‘Universal Jurisdiction’ to prosecute for war crimes in Sri Lanka becomes a futile exercise.
It is critical that Sri Lanka makes use of this increasingly shrinking international space for LTTE operations prudently to combat the re-emerging threat of LTTE in the soil of Sri Lanka through a multi-pronged and multi-dimensional strategy.
This Court ruling and the EU ban, which require enhanced vigilance on overt and covert operations of LTTE, set the tone to enhance Sri Lanka’s counter terrorist financing efforts. Improved international cooperation with the counterparts in European nations in terms of financial intelligence sharing, financial crime investigation, financial crime prosecution and extradition enables to mitigate and preclude threat of terrorist financing, because LTTE receives a substantial financial support from member states of European Union.
Constant emphasize by the Court over revival capacities of LTTE, despite its military defeat, warrants Sri Lanka to act in a more proactive and a preventive manner rather than solely a reactive way to the current terrorist threat poses by the LTTE. Proliferation of the propaganda in the form of praising, supporting, naturalizing and justifying the LTTE cause and its terrorist activities is a major challenge to the territorial sovereignty of Sri Lanka, because it ploughs the ground for violence. In this regard, it is of utmost importance to design laws to prevent indirect incitement to terrorism in compliance with international human rights law and standards.
*Ms. K.M.M.M. Jayathilaka is a research intern at the Institute of National Security Studies (INSS), the premier think tank on National Security established under the Ministry of Defence. The opinion expressed is her own and not necessarily reflective of the institute.