The General Court of the European Union (EU) on 16 October annulled measures taken by the Council of the EU by lifting certain restrictions placed against the Liberation Tigers of Tamil Eelam (LTTE), namely the designation of them as a terrorist organization and the freezing of their funds. The Court in addition ordered the Council of the EU, which lost the case filed by the plaintiffs, the Tamil Eelamist pro-LTTE Diaspora, to pay its own costs and the costs of the LTTE. Although, the Court decision will come into effect only after three months, the defendants, The Netherlands, the United Kingdom and the European Commission were ordered to bear their own respective costs.
Ceylon Today called on former Sri Lankan Permanent Representative to the United Nations in Geneva, Dr. Dayan Jayatilleka to express views.
What led to the Court of Justice of the EU giving a legal ruling lifting certain restrictions imposed on the LTTE, on a ban which was in effect since 2006?
A: I completely dismiss the suggestions by sections of the Opposition that the removal of the LTTE from the list of proscribed organizations by the EU Court is some kind of tactic of the government of Sri Lanka for electoral or financial advantage. This is totally farfetched. The problem is far more serious.
The removal of the Tigers off the proscribed list by the EU Court is a symptom in the first place of the deterioration in Sri Lanka’s relationship with Europe and in the second place the change in European public and institutional opinion concerning Sri Lanka and in the third place the retreat of the Sri Lankan State in the global arena and its successive defeats in the Cold War that is being waged against this country.
It is in short yet another failure of the diplomacy of the Government of Sri Lanka especially on the Western front.
Who is at fault or is it the whole foreign policy that must take the blame?
A: I would not point the finger at Minister of External Affairs Prof. G.L. Peiris primarily except that his sins have been much more sins of omission than of commission. The real problem with Prof. Peiris is not his inability but that he does not exercise his ability. I have been present both in Geneva and Paris when Prof. Peiris has addressed diplomatic audiences and has successfully convinced them of Sri Lanka’s case. This was several years ago when he visited Geneva as the Minister of Export Development and International Trade and later when he visited Paris in 2011 or 2012.
What has happened in the last intervening years is the acceleration of a process in which Sri Lanka’s foreign policy has been increasingly securitized, by which I mean that Sri Lanka’s foreign policy stance, its discourse in the international arena have all been driven and dominated by the bureaucracy of the Ministry of Defence and Urban Development and Prof. Peiris has allowed himself to be converted into little more than an English language translator and spokesman for the policies emanating from the Defence Ministry.
The restrictions on travel to the North mean an immediate negative impact in Europe where public opinion and governmental and institutional opinion are averse to signs of closure in societies, especially in areas where ethnic and religious minorities live.
The kind of garrison State mentality that is pushed by the secu-cracy (the security agencies) immediately triggers a backlash from many parts of the world, especially the West. The West cannot be dismissed though we do not have to comply with every wish, whim and fancy of the West. The West cannot be dismissed because of our high degree of economic dependence on Western markets.
Thus, the lifting of the proscription of the Tigers by the EU Court, I would understand as being embedded in an overall context and situation of the rapid decline of Sri Lanka’s relations with the West and Sri Lanka’s profile in Western opinion making circles including public opinion.
How do you see in the charges levelled against Opposition and United National Party (UNP) Leader, Ranil Wickremesinghe with regard to his alleged role in the EU Court’s judgment?
A: I would much rather go by the record and not by the speculation or the propaganda of the government.
When going by the record I see three things that neither Wickremesinghe nor the UNP has addressed.
The first issue is that former President Chandrika Bandaranaike Kumaratunga liberated Jaffna in December 1995 through the Operation Riviresa which was spearheaded by former General Gerry de Silva. But former Prime Minister, Wickremesinghe when he signed his Ceasefire Agreement (CFA), permitted the LTTE to go back and do political work in areas liberated by the Sri Lankan Army while the Sri Lankan State was not allowed reciprocally to go into LTTE controlled areas. This is a fact and not speculation.
The second fact is that Kumaratunga had belatedly approved of long-range reconnaissance patrol (LRRP) operations to take down the LTTE command structure and those operations had proved very successful with eight members of the LTTE command structure being assassinated by Sri Lankan LRRP teams. But former Prime Minister Wickremesinghe during his CFA not only called off an operation for Christmas Eve of that year which was meant to target the now slain LTTE Leader Velupillai Prabhakaran himself but he ordered and permitted the raid of a safe house of the Directorate of Military Intelligence (DMI) in Athurugiriya despite the assurances given by then Army Commander former Lieutenant General Lionel Balagalla that this was a legitimate operation and these were not rogue elements. The Military Spokesman then, the hero of the defence at the Elephant Pass in 1991, former Major General Sarath Karunaratne spoke up for the DMI operatives who were in Athurugiriya, but under Former Prime Minister Wickremesinghe they were taken into custody and interrogated. This is a fact and not a speculation.
The third fact is that former Prime Minister Wickremesinghe’s so called good relations with the West were never used to secure support to crackdown on the LTTE.
So, unless and until, he makes an apology as a self-criticism on those matters of recent political history, he will always be vulnerable to propaganda from the government especially during an election as to alleged links with the LTTE or pro-LTTE Diaspora elements.
What about the Tamil National Alliance (TNA) element with regard to EU Court’s decision and their code of conduct pertaining to the government’s approaches to involve them in the political process?
A: The TNA cannot really have the cake and eat it. Many of the TNA’s criticisms have been valid but this does not justify certain aspects of the TNA’s political behaviour.
The TNA has just now released a statement which says that individuals and agencies of the Sri Lankan State have been guilty of genocide under Article 2 of the Geneva Convention on the Prevention and Punishment of the Crime of Genocide.
One cannot say this kind of thing and still be considered a legitimate peace partner. This does not happen anywhere in the world.
The TNA has to decide whether they are in or whether they are out, because the stance that they are taking is not only not acceptable to the present government but they would not be acceptable to any elected government of Sri Lanka and any democratic political party that chooses to agree with the TNA’s political positions would not be elected to governmental office.
Thus, the TNA must decide whether they want a partnership with the democratic elements in the South which would be the government or the Opposition or whether they want to continue with this vacillating stand which vacillates between reason when they are in the South and rhetorical radicalism when they go up North.
The TNA should study the way in which the Irish Republican Army (IRA) and the Sinn Fein have conducted itself after the Good Friday Agreement using every bit of political and developmental space that was opened up by the Good Friday Agreement. Britain has not become a republic as the IRA wanted. It has not become even a federal system. It is still a dominantly unitary State with a monarchy but the IRA and Sinn Fein have chosen to operate within that.
The TNA has not operated within the available political space under the 13th Amendment. It has gone so far as to boycott and to refuse President Rajapaksa’s invitation to join in the investiture of Prime Minister of India Narendra Modi. Northern Province Chief Minister C.V. Vigneswaran refused that invitation. Vigneswaran also refused the invitation to join the President on the Yal Devi.
The rest of the TNA must decide whether it is in or out.
It looks as if the TNA sounds like it is still dreaming of Tamil Eelam and hoping that there could be a change in the international atmosphere and environment including the legal environment which would enable them to head for the exits as it were. This however, is a recipe for disaster. It will only strengthen the Sinhala ultra-nationalists electorally and otherwise and it may even affect the outcome of the Presidential and Parliamentary election in a manner which would not be in the interests of the TNA. If the TNA continues down this path, for an instance, the TNA has threatened non-violent civil agitation starting January, it may push the hawks within the Sri Lankan State into closing off even the democratic political space that President Rajapaksa opened by winning the war and allowing the Northern Provincial Council elections to go through.
Any implications of the lifting of the ban?
A: There will not really be any implication on any upcoming general election or the presidential election in January. On the one hand, the government will use the lifting of the ban to whip up paranoia among the Sinhalese but on the other hand, the Sinhalese are smart enough to know that the government has failed dismally and repeatedly in the international arena, starting with the triple defeats of 2012, 2013 and 2014 in Geneva at the United Nations (UN) Human Rights Council (HRC) which has resulted in an international inquiry. It is not that the Sri Lankan people support the international inquiry, far from it, there is widespread even bi-partisan opposition to the inquiry, but the government will not be able to reap the electoral benefits as it did in 2009 of the diplomatic victory we obtained in Geneva in May that year because it has been losing serially in the diplomatic arena and therefore, this is a double-edged sword for the government.
Any measures that can be taken by the government to get these restrictions re-imposed?
A: I certainly hope the government is working hard and overtime on this. There have to be legal and diplomatic tracts running in tangent. The government has to look at its whole spectrum of relationships with Europe and understand that this relationship has deteriorated because the image and the profile of Sri Lanka has been badly damaged.
Of course the government will say that this is all the result of the LTTE Diaspora activity, but then again what does this mean? This means that the LTTE Diaspora has been able to beat the government of Sri Lanka on the terrain of the European Courts. It is not something the government should be particularly proud about.
The government has to challenge this overturning of the barrier, of the removal of the LTTE from the list of proscribed organizations and it must harness the best legal support that Sri Lanka is capable of harnessing in order to do this. The Bar Association of Sri Lanka (BASL) has volunteered to help, so the government should regard this as something that is far too important to be left to the State agencies alone and I would strongly urge that a high powered legal taskforce which combines the legal departments of the State with distinguished individuals from civil society organizations such as the BASL, be set up.
A broad Sri Lankan legal counter offensive must be mounted in the EU higher Court in the appeal process to overturn this partial de-proscription of the Tigers.
How possible is a serious threat of a LTTE resurgence?
A: I completely discount any military resurgence by the Tigers. The Sri Lankan State is on top of it and in any case the pro-Eelam Tamil Diaspora is not stupid.
The game plan is simple in that it is not to reignite terrorism or a war on Sri Lankan soil. The material that the Tamil Eelamists, the Diaspora elements as well as the Tamil Eelamists in Tamil Nadu have put out make it clear as to what the strategic plan is, which is that, that plan has a military endgame but it is not a military endgame in which the Tigers resume war against the Sri Lankan State but a military endgame such as that which has taken place in other parts of the world, where the large neighbouring power and/or extra regional powers are motivated and leveraged into moving militarily to ‘protect’ the Tamil minority in the North and East of Sri Lanka. The game plan is not even to seek military intervention in the whole of Sri Lanka.
So if the Sri Lankan military bureaucracy is gearing up to fight the West or the Indians in a prolonged guerrilla war on Sinhala soil they are not going to get the chance to do so.
The pro-Eelamist Tamil Diaspora’s endgame is one in which one has the situation such as that in Georgia, Ukraine or earlier Kosovo, South Sudan and now imminently in Kurdistan. It is only a matter of time before Kurdistan becomes an independent State under Western auspices. The game plan is to successfully and credibly depict more particularly the Tamils and also the Muslims of the North and East as endangered by a hawkish regime in the South and to create regional and global opinion and also to delegitimize the Sri Lankan government through what is known as law-fare, which is the legal equivalent of warfare, which would depict the Sri Lankan Government as the kind of State from which the minorities have to be helped to escape and this will be done through the UN international investigation which the Sri Lankan Government has been unable to stop because it has lost serially in Geneva.
There is a project of the delegitimizing of the Sri Lankan State running parallel with the project of the gradual re-legitimization of the Tigers, but it is not a game plan in which the regular terrorism is envisaged.
The Tigers and the pro-Tamil Eelam and the Tamil Diaspora who are not all Tigers are smart enough not to try to refight the old Eelam war, but the Sri Lankan security bureaucracy is still fighting the old Eelam war and is preparing to fight the last war and not the next one.
The next war is not one in which Sri Lanka can prevail militarily.
The next war can be prevented though international politics and diplomacy.
What is being waged against Sri Lanka now is a Cold War on a global scale and Sri Lanka is losing that Cold War though five years ago we won the first battle of the Cold War which was the Special Session on Sri Lanka at the UNHRC. At the very least, we have been losing the Cold War since 2012. More States have crumbled having lost Cold Wars than having lost hot wars.
The Soviet Union crumbled without a single bullet being fired though it successfully defended itself against the Nazi Army.
Sri Lanka is losing the Cold War which will create the condition in which there could be external intervention to provide a safe haven for the Tamil people in what is a very sensitive border area across which there are 70 million co-ethnics in Tamil Nadu. That is the game plan of the pro-Tiger Tamil Diaspora and that is a game plan for which the Sri Lankan State authorities have no response because foreign policy and diplomacy which are the only real defences a small island has on the doorstep of a big power.