Introduction

A week ago, Sinhala Sri Lanka President Mahinda Rajapakse spoke at the conference of the Non- Alignment Movement in Havana.  He was at pains, to draw a distinction between terrorism and liberation. He declared -

“...Terrorism and liberation differ from each other, as much as the sky differs from the earth. Liberation, unlike terrorism, is a creative and a humane force. It is a humane vehicle of new visions for the progressive change of power structures on the one side and socio-economic structures on the other. Terrorism, by contrast, is a destructive force, - a de-humanizing force, - that cannot in any way be justified... Let us call upon the Non-Aligned Movement as well as the United Nations to strongly renew the commitment to fight terrorism whenever and wherever it decides to raise its ugly head. At the same time all of us together need to find innovative means and ways to combat terrorism, as it poses a grave threat to the political and economic well-being, sovereignty and territorial integrity of nation States. “ - Address by Sri Lanka President Mahinda Rajapaksa at the Non-Aligned Movement, Conference, Havana, Cuba 16 September 2006

President Rajapakse's efforts to distinguish between liberation and terrorism was understandable. He was, after all, speaking in the land of Fidel Castro and the legendary Che Guevara. And one would imagine that President Rajapakse was aware of the speech that Fidel Castro made in his own defence at the Moncada Trial in Santiago de Cuba on 16 October 1953 

"..We are proud of the history of our country... We were taught to venerate the glorious example of our heroes and martyrs.... We were taught that liberty is not begged for but won with the blade of a machete. We were taught that for the guidance of Cuba's free citizens, the Apostle wrote in his book The Golden Age: 'The man who abides by unjust laws and permits any man to trample and mistreat the country in which he was born is not an honorable man ..." In the world there must be a certain degree of honor just as there must be a certain amount of light. When there are many men without honor, there are always others who bear in themselves the honor of many men. These are the men who rebel with great force against those who steal the people's freedom, that is to say, against those who steal honor itself. In those men thousands more are contained, an entire people is contained, human dignity is contained... We were taught to cherish and defend the beloved flag of the lone star, and to sing every afternoon the verses of our National Anthem: 'To live in chains is to live in disgrace and in opprobrium,' and 'to die for one's homeland is to live forever!' All this we learned and will never forget... "

President Mahinda Rajapakse may have also been aware that, for many Tamils, this speech by Fidel Castro in 1953 invited comparisons with the speech by Nadarajah Thangathurai from the dock at his trial in Colombo in 1983 and with the Maha Veerar Naal  addresses by the Leader of Tamil Eelam, Velupillai Pirabaharan.  And, if President Rajapakse was familiar with Tamil (which to his Sinhala people remains an alien tongue) he may have found that Fidel Castro's speech also found resonance in a song by Kaviarasu Kannadasan -

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Is all resort to violence, terrorism?

Having said that, President Rajapakse's address in Havana affords an opportunity to examine the rhetoric of those who would suppress struggles for freedom with the cry of 'terrorism' - and an opportunity to call  for the liberation of political language along with the liberation of peoples. What is terrorism?  Is all resort to violence to secure political ends, terrorism? Aurobindo wrote a hundred years ago -

"...It is the common habit of established governments and especially those which are themselves oppressors, to brand all violent methods in subject peoples and communities as criminal and wicked. When you have disarmed your slaves and legalised the infliction of bonds, stripes, and death on any one of them who may dare to speak or act against you, it is natural and convenient to try and lay a moral as well as a legal ban on any attempt to answer violence by violence...But no nation yet has listened to the cant of the oppressor when itself put to the test, and the general conscience of humanity approves the refusal...Liberty is the life breath of a nation; and when life is attacked, when it is sought to suppress all chance of breathing by violent pressure, then any and every means of self preservation becomes right and justifiable...It is the nature of the pressure which determines the nature of the resistance..."

And, Subramaniam Sivanayagam, in his own inimitable way, related a homely story in his "Dear Sri Lanka Ambassador... Your Slip is Showing"  in November 1983. He wrote -

"...Imagine a habitual wife-beater who has been at it for twenty years. Imagine the little woman protesting, arguing, screaming, grappling, and having come to the end of her tether one day, snatching the nearest kitchen knife to defend herself against further attacks. And then she says:- "You have tormented me enough. It is impossible to live with you any more". With that, she files papers for divorce. If you were judge, dear reader, what causes would you attribute to the break-up of the marriage? The Sri Lanka government (as probably the habitual wife-beater would) attributes the causes to the wife snatching the kitchen knife and asking for separation. To any oppressor, resistance to oppression is naturally the beginning of the problem..."

A hundred years after Aurobindo, and 23 years after Sivanayagam's writing, the question remains: What are the circumstances in which a people ruled by an alien people may lawfully resort to arms to resist that alien rule and secure freedom? Or is it that there are no circumstances in which a people ruled by an alien people may lawfully resort to arms to to liberate themselves?

Let us take the conflict in the island of Sri Lanka.

Are the Tamil people right to point out that peaceful attempts to resolve the conflict  were met with government sponsored pogroms in 1958, 1961, 1974 and 1977? Was Paul Sieghart Q.C. right to conclude in his  'Report of a Mission to Sri Lanka' on behalf of the International Commission of Jurists in March1984 that "communal riots in which Tamils are killed, maimed, robbed and rendered homeless are no longer isolated episodes; they are beginning to become a pernicious habit." 

Are the Tamil people right to point out to the record of broken pacts, dishonoured agreements and evasive proposals and Sinhala chauvinism's consistent refusal to recognise the existence of the Tamil people as a "people" with an historic homeland? Was Professor Marshall Singer right to conclude in 1995 that -

"...One of the essential elements that must be kept in mind in understanding the Sri Lankan ethnic conflict is that, since 1958 at least, every time Tamil politicians negotiated some sort of power-sharing deal with a Sinhalese government - regardless of which party was in power - the opposition Sinhalese party always claimed that the party in power had negotiated away too much. In almost every case - sometimes within days - the party in power backed down on the agreement..." Professor Marshall Singer, at US Congress Committee on International Relations Subcommittee on Asia and the Pacific Hearing on Sri Lanka November 14,1995

Are the Tamil people right to point out that ethnic outbidding has perpetuated rule by a permanent alien Sinhala majority for the past several decades? Was Professor Neil Devotta right to conclude in 2005 that -

"...Beginning in the mid-1950s Sri Lanka's politicians from the majority Sinhalese community resorted to ethnic outbidding as a means to attain power and in doing so systematically marginalised the country's minority Tamils...parties in power seek to promote dubious conflict resolution only to be checkmated by the respective opposition which typically claims that the proposed solutions are bound to eventually dismember the island" From ethnic outbidding to ethnic conflict: the institutional bases for Sri Lanka's separatist war -  Neil Devotta, 2005

Are the Tamil people right to point out the truth of that which Gandhian leader S.J.V.Chelvanayagam declared in 1975 -

"Throughout the ages the Sinhalese and Tamils in the country lived as distinct sovereign people till they were brought under foreign domination. It should be remembered that the Tamils were in the vanguard of the struggle for independence in the full confidence that they also will regain their freedom. We have for the last 25 years made every effort to secure our political rights on the basis of equality with the Sinhalese in a united Ceylon. It is a regrettable fact that successive Sinhalese governments have used the power that flows from independence to deny us our fundamental rights and reduce us to the position of a subject people. These governments have been able to do so only by using against the Tamils the sovereignty common to the Sinhalese and the Tamils. I wish to announce to my people and to the country that I consider the verdict at this election as a mandate that the Tamil Eelam nation should exercise the sovereignty already vested in the Tamil people and become free."  Statement by S.J.V.Chelvanayakam Q.C. M.P. , leader of the Tamil United Liberation Front, 7 February 1975

Are the Tamil people right to point out that the Sixth Amendment to the Sri Lanka constitution outlawed the parlimentary political struggle for a separate state and that there was no alternative but to have recourse to an armed struggle for freedom? Are they right to point out that the 6th Amendment  itself was a clear violation by Sri Lanka of its international obligations?

"The freedom to express political opinions, to seek to persuade others of their merits, to seek to have them represented in Parliament, and thereafter seek Parliament to give effect to them, are all fundamental to democracy itself. These are precisely the freedoms which Article 25 (of the International Covenant of Civil and Political Rights) recognises and guarantees - and in respect of advocacy for the establishment of an independent Tamil State in Sri Lanka, those which the 6th Amendment is designed to outlaw. It therefore appears to me plain that this enactment constitutes a clear violation by Sri Lanka of its obligations in international law under the Covenant ...(Paul Sieghart: Sri Lanka-A Mounting Tragedy of Errors - Report of a Mission to Sri Lanka in January 1984 on behalf of the International Commission of Jurists and its British Section, Justice, March 1984)

Are the Tamil people right to point out that their armed struggle was a last resort against oppressive rule by a permanent Sinhala majority within the confines of an unitary state and that it is therefore not unlawful? And the double negative is deliberate. Are the Tamil people right to point out that Sri Lanka's resort to arms to quell a struggle for self determination is unlawful?

Do we not deliberately obfuscate when we conflate the two words 'terrorism' and 'violence'? The Cuban revolution was violent, but it was not terrorism. The war against Hitler was violent, but it was not terrorism. Again, the war against Saddam Hussein was violent but, presumably,  it was not 'terrorism'. And so, too, the continuing war against the Taliban in Afghanistan is violent but, presumably, it is not terrorism.

What is terrorism?

And if all resort to violence to secure political ends is not terrorism then, by all means let us address the question:  what is terrorism? 'Terrorism' is a term used in legal instruments as well and legal instruments have legal consequences - consequences which impact on the fundamental rights of self determination, freedom of expression and freedom of association.

The view expressed by Agner Fog in April 2002  that "...since there are more than a hundred different definitions of terrorism... we have to admit that the concept of terrorism is a rhetoric device used for condemning one's enemies rather than a scientifically definable category.." may well be true, but that does not help us in defining the term 'terrorism' as used in legal enactments.

Again the conclusion in the Oxford Concise Dictionary of Politics (2nd edition) that  terrorism is a

".. term with no agreement amongst government or academic analysts, but almost invariably used in a pejorative sense, most frequently to describe life-threatening actions perpetrated by politically motivated self-appointed sub-state groups. But if such actions are carried out on behalf of a widely approved cause, say the Maquis seeking to destabilize the Government of Vichy France then the term 'terrorism' is avoided and something more friendly is substituted. In short, one person's terrorist is another person's freedom fighter."

may well be right. But that too will not help us in defining the term 'terrorism' as used in legal enactments. And define we must. The rule of law demands that terrorism be defined - otherwise we will enter the arena of arbitrary decision making, reminiscent of the times when equity was measured by the length of the Lord Chancellor's foot. And that would be to adopt an Alice in Wonderland approach to the law and follow in the footsteps of Humpty Dumpty -

"'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean, neither more nor less'. 'The question is,' said Alice, 'whether you can make words mean so many different things'. 'The question is,' said Humpty Dumpty, 'which is to be master - that's all'." (Lewis Carrol - Through the Looking Glass, c.vi)

Any reasoned approach to a definition of terrorism will need to make some matters clear. One is that terrorism is concerned with means and not with ends. Mira Banchik was right to point out  in International Criminal Court & Terrorism -

"Statements like “one man’s terrorist is another man’s freedom fighter” hinder the accomplishment of reaching a useful, and much needed, definition of terrorism. They have become a cliché and an obstacle to efforts to successfully deal with terrorism. If nothing else, these statements lead to the questionable assumption that the ends justify the means."

It is right that we should separate means and ends. But it is also right that we should examine the international law implications where a freedom fighter is a combatant in an armed conflict recognised by international law - a combatant in control of territory within internationally recognised lines of control. We need to pay attention yet again to the words of Michael Schubert  'On Liberation Movements And The Rights Of Peoples',1992

"The French Chief of Staff Andre Beaufre wrote about his own experience in Algeria and Vietnam in his 1973 German-language book 'Die Revolutionierung des Kriegsbildes': 'The surprising success of the decolonization wars can only be explained by the following: The weak seem to have defeated the strong, but actually just the reverse was true from a moral point of view, which brings us to the conclusion that limited wars are primarily fought on the field of morale.'  In order for... states to quickly and effectively wipe out "revolt", which could get out of hand despite technical superiority (read: better weapons) due to the political and moral convictions of the mass movement, it is necessary to make comprehensive analyses early on and to take effective action in the psychological arena...  Ever since the U.S. Defence Department organised the first ever World Wide Psyops Conference in 1963 and the first NATO Symposium On Defence Psychology in Paris in 1960, many NATO leaders and several scientists have been working in the field of psychological counter-insurgency methods. The central aim of this defence approach is to destroy the morale of the insurgent movement ... Defaming the insurgents as "terrorists" and punishing them accordingly - thereby ignoring international law concerning the rights of people in war - is a particularly useful means."

Domestic law cannot define terrorism by ignoring international law concerning the rights of people in war - and the right a people have, as a last resort, to take up arms to free themselves  from oppressive alien rule. And it is this which is crucial in the case of an armed struggle for freedom. International law recognises the rights (and duties) of combatants in an armed conflict. Article 1.1 of Protocol II of the Geneva Conventions defines an armed conflict as one

"which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol"

The LTTE is an organised armed group, under responsible command, exercising such control over a part of the island of Sri Lanka so as to enable it to 'carry out sustained and concerted military operations'. On these facts, reason shows that the conflict between Sri Lanka and the LTTE is an armed conflict within the meaning of the Geneva Conventions and international law.

The Inter-American Commission on Human Rights was right to point out in 2002 -

"...Where terrorist violence triggers or occurs in the context of an international armed conflict, it is particularly crucial for member states to determine, in accordance with the Third Geneva Convention of 1949 and Additional Protocol I with respect to States that have ratified it, whether a person falling within a state’s power constitutes a civilian or combatant and, in the case of the latter, whether the combatant is “privileged” and therefore entitled to prisoner of war status and immunity from prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war..."

 And it was right to add

"Among the principles explicitly recognized in this (Inter-American Convention Against Terrorism) Convention is the requirement that anti-terrorist initiatives must be undertaken in full compliance with member states’ existing obligations under international law, including international human rights law. According to Article 15 of the Convention, “[t]he measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.” This prerequisite reflects the fundamental principle that the campaign against terrorism and the protection of human rights and democracy are complementary responsibilities; the very object and purpose of anti-terrorist initiatives in a democratic society is to protect democratic institutions, human rights and the rule of law, not to undermine them. "

And here the view of terrorism expert A.Schmid  in a 1992 report for the then UN Crime Branch makes good sense.

"If the core of war crimes - deliberate attacks on civilians, hostage taking and the killing of prisoners - is extended to peacetime, we could simply define acts of terrorism as 'peacetime equivalents of war crimes'."

In the end all good law is founded in sound common sense. Acts of terrorism are the peacetime equivalents of a war crime. A state which seeks to secure its stated aim of  'democracy' (in a peace time situation) by killing civilians and prisoners, as Pinochet attempted in Chile, commits acts of terrorism. Again the actions of Al Queda in targeting civilians would amount to acts of terrorism where the actions were in a non armed conflict situation.  But,  the same acts  committed during an armed conflict would amount to violations of the humanitarian laws of armed conflict.

Deliberate attacks on civilians, hostage taking and the killing of prisoners in a 'peace time' situation are terrorist acts. But in an armed conflict situation these same acts are war crimes and breaches of the Geneva Conventions - and may be punishable as such.  But to categorise a combatant in an armed conflict as a 'terrorist' organisation and seek to punish it on that basis, is to violate both international law and common sense. It is to assert that  a people ruled by an alien people may not, as a last resort,  lawfully resort to arms to resist that alien rule and secure freedom.

Listing the LTTE as a terrorist organization - a political act directed to prevent the emergence of an independent Tamil Eelam

For Sri Lanka, branding the LTTE as a 'terrorist' organisation was simply another weapon in its armoury to subdue Tamil resistance. In 1978 Sri Lanka  proscribed the LTTE  by recourse to Emergency Regulations under the Public Security Act. The proscription was renewed from time to time.  The political nature of the proscription was underlined when, in  2002, Sri Lanka rescinded the proscription as a prelude to the Norwegian sponsored peace talks.

The United States listed the LTTE as a terrorist organisation in 1997 four years before 9/11.  The United Kingdom listed the LTTE as a terrorist organisation in February 2001 seven months before 9/11. These listings had nothing to do with 9/11. The European Union and Canada  followed in April 2006. But even though these latter listings were after 9/11, the reasons were not very different to those which impelled the US in 1997 and the UK in early 2001.The political nature of the listings is shown by the somewhat ludicrous result that today, the LTTE is not proscribed in the country in which the LTTE is alleged to constitute a  'terrorist' threat (i.e. Sri Lanka)  - and that the LTTE is proscribed in countries in which no one alleges that it poses a  'terrorist' threat.

The international community is not unaware that in an armed conflict situation, violations of the humanitarian law of armed conflict need to be addressed by recourse to other fora. And, in any case, the international community is well aware that the violations by the LTTE paled into insignificance compared to the terror  practised by the Sri Lankan state, the enactment of laws which were an 'ugly blot on the statute book of any civilised country', Sri Lanka's resort to  arbitrary arrest and detention, torture, extra judicial killings and massacres, indiscriminate aerial bombardment and artillery shelling, wanton rape,  genocide - together with press censorship, disinformation and murder of journalists, and the impunity granted to Sinhala armed forces, para military groups, goondas and Sinhala thugs. 

The political reality is that the proscriptions had little to do with with allegations that the LTTE had violated the humanitarian laws of armed conflict - and everything to do with preventing the emergence of an independent Tamil Eelam state and in this way advance the strategic interests of the international community  - and maintain the uneasy power balance between the US and India in the Indian Ocean region.

"..As I have said in both India and Pakistan, the U.S. does not envision or support the establishment of another independent state on this island, nor do we believe other members of the international community would support it..." US Under Secretary of State, Thomas R. Pickering, on-the-record Press Conference, 29 May 2000

Listing precludes Courts from themselves finding on the facts whether LTTE is a terrorist organisation

The political nature of the listing of the LTTE  by the international community is also shown by the fact that, in each case, the listing was made by the executive wing of the government concerned under laws which  precluded the courts from themselves finding, on the facts, whether the LTTE was a terrorist organisation or not.

Though judicial review is not excluded, such  review of the action taken by the executive wing  is limited to determining whether the executive had acted arbitrarily or wholly unreasonably. And, the courts in the U.S.A., in Canada (and, for that matter, in the United Kingdom)  have always shown a great reluctance to interfere with executive discretion in the area of 'claimed' national security.

Courts take the view that where 'national security' is threatened, executive discretion relating to the very life of the nation is involved and this is not a matter where the judiciary should  supplant the view of the executive. It is said that the domestic Constitution has empowered the executive (and not the judiciary) to decide matters relating to national security. It is urged that the information on which the executive acted cannot be made available to a court,  to be tested by cross examination and a decision made according to law - because to do so would be to put at risk the national security apparatus of the state, which must function in secrecy.

It is procedural law that creates the frame within which justice may be done. Procedural law is civilisation's substitute for private vengeance and self-help. But in the case of the categorisation of the LTTE as a terrorist organisation, procedural law prevents the Courts from examining all the facts, testing the truth of the evidence, applying the law to the facts so determined and then ruling whether the categorisation as a terrorist organisation is lawful. Lynch law is no substitute for the rule of law.

Conclusion

In Havana, President Mahinda Rajapakse  was right to distinguish  'liberation' from  'terrorism'. But President Mahinda Rajapakse may want to pay more careful attention to the views expressed by  Dr. Johan Galtung, founder of the International Peace Research Institute, Oslo, Dr. Hans R. Klecatsky, Professor of Public Law, former Minister of Justice of Austria, Dr. Auguste-Raynald Werner, Professor em. of International Law and Permanent Representative of the I.P.O. to the United Nations in Geneva and many others in the Geneva Declaration on the Question of Terrorism in 1987 -

"...The peoples of the world are engaged in a fundamental series of struggles for a just and peaceful world based on fundamental rights now acknowledged as sacred in a series of widely endorsed international legal conventions. These struggles are opposed in a variety of cruel and brutal ways by the political, economic and ideological forces associated with the main structures of domination present in the world that spread terrorism in a manner unknown in prior international experience... The terrorism of modern state power and its high technology weaponry exceeds qualitatively by many orders of magnitude the political violence relied upon by groups aspiring to undo oppression and achieve liberation.  It is a cruel extension of the terrorist scourge to taunt the struggles against terrorism with the label "terrorism".... We support these struggles and call for the liberation of political language along with the liberation of peoples. Terrorism originates from the statist system of structural violence and domination that denies the right of self-determination to peoples