Remedial Sovereignty

| by P. Sivakumaran

(October 10, Colombo, Sri Lanka Guardian) The International Covenant on Civil and Political Rights (CCPR) recognizes, in accordance with the purposes and principles of the Charter of the United Nations, article 1 of the CCPR, that all people have the right of self-determination. “The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely "determine their political status and freely pursue their economic, social and cultural development." The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law” (The right of self-determination of people –Article 1, 13/03/1983. CCPR General Comment)

File Photo of V. Prabhakaran, former leader of the LTTE

Tamils' demand for self-determination in the past four decades, which posed persistent challenges to Sri Lanka's sovereignty, was rooted on the acceptance of Tamils fundamental right to self-determination under customary international law, as a "people" possessing a distinct language, distinct culture and living in an identifiable region considered as the historic homeland. But recent, state sanctioned, massacre of 40,000 Tamils in Mu'l'livaaykkaal, and the continuing structural genocide, while reinforcing the traditional argument based on rights, also supplies an independent, stand alone justification for the creation of a state, based on the need to defend the Lankan Tamil population from further destruction - the doctrine of "remedial sovereignty."

Two main theories of secession exist: primary right theories and remedial right only theories, both of which apply to Lankan Tamils.

Primary right theories stipulate that nations may secede in the absence of past injustice; this represents the pre-Mu'l'livaaykkaal period where Tamils fought for their rights regardless of injustice.

Remedial right only theories argue that secession be justified if important harms have been made to the seceding nation; this doctrine applies to the post-Mu'l'livaaykkaal period where Tamils claim irreparable harm arguably amounting to genocide, crimes against humanity and war crimes have been inflicted on Tamils.

The Tamil people have consistently refused to compromise their sovereignty and the right to exercise it freely – the right of self-determination - for very legally, politically and morally justifiable reasons. Tamils have consistently articulated the rights based claim in 1969 (Kodeeswaran challenge to language act), 1972 (Tamil boycott of Republic), 1975 (By-election of SJV Chelvanayagam), 1976 (Vaddukoddai resolution), 1977 (General election), 1985 (Thimpu talks), 2003 (ISGA), and 2009 (refusal by the highest command layer of the LTTE military hierarchy to surrender), with increasing vigor, Tamils have never acceded their sovereignty to the Sri Lankan state.

"Allowing the Tamil killing field massacres to be subsumed into the traditional self-determination argument, as a continuation of Black July in 1983, embodying the progressive physical and socio-cultural destruction of the Lankan Tamil population in its historical areas of habitation, will diminish the enormity of the massacres executed by Sri Lanka, abetted by several western nations. Further, Tamil history will look unfavorably on the failure to elevate the Tamil genocide, a Srebrenica moment, into similar international consciousness, as a defining historic event, akin to the jewish holocaust," Rajeev Sreetharan, a legal researcher with Tamils Against Genocide (TAG), a US-based activist group, said.

"Instead, the killing field, and post-war policies of state-sponsored demographic change in historically Tamil areas, supply a potent, stand alone, independent justification for Tamil state formation as remedial self-determination response," Sreetharan added.

Political observers also point out that ‘Remedial sovereignty’ is a useful paradigm to provide the international community with a framework to confer statehood on those peoples who have not succeeded in their legitimate rights-based attempts to establish sovereignty. The paradigm also provides space to the International community to recover from their own failure to intervene to stop crimes of genocidal-intensity.

Evolving international dynamics in several mutually reinforcing issues which are likely to invoke calls for the remedial "secession" or "sovereignty" are gaining ground, and are exposing evidence for the Mu'l'livaaykkaal killings:

In addition to UN expert panel report, International NGOs, and news channels are independently or jointly exposing evidence that contain elements pointing to war-crimes, crimes against humanity, and genocide. Channel-4 videos, Amnesty, ICG, HRW reports, and eye-witness accounts including those of ex-UN staffer Gordon Weiss add to the mounting evidence.

Colombo's attempt to sanitize and immunize its alleged genocidaires/war criminals by appointing them to diplomatic positions appear to be crumbling with increasing number of civil legal actions for damages filed by the diaspora in the U.S.and in Europe. Ex Maj. General Jagath Dias is the first of the alleged criminals to be recalled after the Swiss government informed Colombo that legal action was imminent. Other active legal efforts, including the ICC filing against Dr Palitha Kohona, Norwegian genocide filing, filing in the DC court against Mahinda Rajapakse which awaits Court ruling on service, charges against alleged war-criminal Shavendra Silva seeking [misplaced] sanctuary in UN "diplomatic immunity" and impending filings contemplated in the Courts of other countries will bring out factual information on war-crimes and other egregious crimes in an international stage in the next few years to further establish additional grounds for remedial sovereignty calls.

Wikileaks has exposed potentially incriminating evidence including paramilitary involvement in killings, use of rape as a weapon of war by Sri Lanka soldiers, and acts of sabotage of peace process by certain states of the International community, revealed as part of the information communicated to officials in Washington from embassy staff in Colombo.

A possible debate in Navi Pillay-led UN's Human Rights Council, where the Secretary General has submitted the UN Panel' report, may lead to an International Investigation in Sri Lanka. This possibility might allow use of new technology to unearth evidence of disposal of bodies, including graves underneath recently built military structures, known co-ordinates of mass-graves where social workers buried bodies during the massacre, and remains of mass burning of bodies.

While the elected Tamil polity in Sri Lanka, the Tamil National Alliance (TNA), is continuing to balk at raising sovereignty issues of any type due to India's insistence arising from India's own geopolitical compulsions, Tamil political observers point out that time is ripe to assert the more potent form of sovereignty claim amply supported by the unraveling evidence of crimes inflicted by the Sri Lankan State on Tamils.

While one ruminates on Prof. David Selbourne's prophetic statement in 1985: "For the bitter truth is that a military solution - that is the random butchery of Tamil civilians, men, women, and children - is the politics of Colombo; they have, and intend, no other," the random butchery, may perhaps provide the most legitimate and potent means to reach the end goal of Tamil struggle, by asserting the right of remedial sovereignty.