Push for LTTE ban in foreign States should continue

Manjula Fernando

Deputy Solicitor General Yasantha Kodagoda of the Attorney General’s Department is a key figure involved in the anti LTTE operations overseas, by coordinating and assisting in investigations and prosecutions by foreign governments law enforcement agencies.

Also a regular member of the delegation to the UN Human rights council since 1999 he shares his views with the Daily News on the local legislative response to LTTE terrorism and the international effort to crack down on the LTTE.

During the early years, the LTTE was involved in common bank robberies and incidents where police officers were intimidated to snatch their weapons with or without causing any injury. These were relatively unsophisticated sporadic acts of violence. The normal criminal law and the criminal justice system was applied to enforce the law with regard to such incidents.

In 1975 the then Mayor of Jaffna Alfred Duraiappah was assassinated. That was one of the first well organized terrorist acts. No special law was brought in to deal with the incident. The only special feature was that the CID conducted a detailed investigation. Inspector Bastian Pillai of the CID was sent from Colombo along with a team. During the course of the investigation, terrorists assassinated him as well. Recently (before the

successful completion of the Wanni Operation) Senior Superintendent of Police of Kankasanthurai (who is also a former CID officer) tracked down a vital witness (an elderly Tamil gentleman who is leading a religious life in Jaffna) who had seen Prabhakaran personally shooting at Alfred Duraiappah at point blank range, when Duraiappah came to the Ponnalai Hindu Kovil in the Jaffna Peninsula to engage in Sunday religious activities.

Before the victim arrived, Velupillai Prabhakaran and his accomplices had been waiting for him for quite some time. Having fatally wounded the Mayor of Jaffna, Prabhakaran and three others who were with him had fled in the vehicle in which Duraiappah arrived at the Kovil. Now with the death of Prabhakaran, the case can be officially closed.

During the formative years of the LTTE, Velupillai Prabhakaran who was then one of the vital activists of the organization was virtually chased away from the LTTE. For well over one year he was disassociated with the LTTE and spent much of his time in India. Uma Maheshwaran was at the helm of affairs of the organization at the time. Then Prabhakaran made a come back and chased away Uma Maheswaran. Thereafter, Maheswaran formed the PLOTE. Of course later Prabhakaran killed Maheshwaran.

Since then and particularly following the riots of 1978, the trend changed and a gradual increase in violence and sophistication was witnessed giving the general sense that an organisation or an organised effort was behind these acts. Those involved in these acts of violence started sending explicit political messages by defacing street name boards leaving only the Tamil and English versions, causing damage to government property and

attacking the police and the security forces. During this period, more and more Jaffna youths were seen joining hands with the organization.

First ever legislative response

During this time the first ever legislative response to eradicate terrorism in Sri Lanka was introduced. Parliament enacted a special provisions law, the ‘Prevention of Terrorism (Temporary Provisions) Act of 1979’. It was imposed for just one year. The Government thought the whole problem would be resolved within a year.

This basically criminalized certain specific terrorist activities and imposed penal sanctions. Search and arrests without a warrant were allowed.

Incidentally, there appears to have then been an internal recognition that the crimes committed by these groups were politically motivated. There are international norms when people are convicted for having committed political crimes, they ought not to be sentenced to death and therefore murder of even the President under this special law carried only life imprisonment as

apposed to the death sentence. In addition to the Prevention of Terrorism Act, Emergency Regulations were brought in under the Public Security Ordinance by the President on the

grounds that there was a threat to national security, maintenance of public order and essential services.

At the end of the year, the Government realized that terrorism had in fact increased as opposed to being abated or controlled. Therefore the Parliament decided to extend the operational period of the Prevention of Terrorism Act by another three years.

At the end of those three years, also terrorism was not over. In fact the situation had further aggravated, and therefore, the Parliament took away the ‘temporary provisions’ part and made it a permanent law. The PTA remains in force to-date.

In 1978 the Parliament proscribed the Liberation Tigers of Tamil Eelam (LTTE). Only the LTTE was proscribed, though during this era there were a few other groups also involved in terrorist activities. However, the real threat was posed by the LTTE. There was total justification to proscribe the LTTE.

LTTE activities outside Sri Lanka

However, the mere proscription of the organization does not appear to have controlled the LTTE and its activities both within and outside Sri Lanka.

Following the proscription in 1978, becoming a member of the LTTE, wearing their insignias, attending in meetings, distributing leaflets, displaying flags, all these were criminalized and penalized. This law was repealed in the mid 80s to facilitate the political dialogue with the LTTE in Thimpu.

For this very noble cause the proscription was lifted. But the emergency and the PTA continued. Of course the LTTE made use of the de-proscription to organize and strengthen their ranks further and were not committed towards the development of a political solution to the ethnic conflict.

Again following the terrorist attack on the Sri Dalada Maligawa in January 1998, the LTTE was once again proscribed under the Emergency Regulations. Of course by this time the LTTE was a full blown terrorist organization de-facto and illegally controlling certain area of the Northern and Eastern Provinces and engaged in conventional war-fare with the security forces.

During the very early stages of the Norwegian brokered Peace Process, an undertaking under the Ceasefire Agreement, the Government under took not to cause arrests and searches under the Prevention of Terrorism Act.

Contrary to public belief, the PTA was never officially repealed. However, in practice a de-facto moratorium on enforcement of all provisions of PTA took place. Further, certain LTTE cadres who were in detention were released in early 2002. This included most of the members LTTE wanted to be released. We later saw repercussions arising by such policy.

Administration changes

Following the change of Government in late 2005, the entire policy towards the LTTE and terrorism perpetrated by the organization changed.

Following the failed attempt on Defence Secretary Gotabhaya Rajapaksa (December 2006) a new set of regulations called ‘Emergency (Proscription of Terrorism and Specified Terrorist Acts) Regulations 2006’ was brought in under the Public Security Ordinance. The primary objective of these regulations was to isolate the LTTE and also to prevent people and organisations from

transacting with the LTTE.

This was a time various bodies, particularly International non governmental organizations were engaged in various transactions with the LTTE in relation to various projects in the Wanni area.

Under the new regulations, a Competent Authority was established to give clearance for projects which involved transactions with the LTTE. Further, provision was made to external agencies to provide humanitarian assistance and emergency medical services.

But the most important feature of that set of regulations was, for the very first time in our history we defined and declared in the regulations what in our view terrorism is - ‘a definition of terrorism’.

In the international front there is no consensus on a common definition for what terrorism is. There are two major debates. One is a philosophical argument as to where liberation (which is lawful) ends and terrorism (which is unlawful) begins.

Liberation is a lawful right, even under the UN charter. If a group of people who have the right to self determination under International Law engages in the use of force for the purpose of liberating its people so that they could exercise the right to self determination, that is a lawful process. That is why independence movements are not contrary to International Law.

This was why the Palestine Liberation Organisaton was considered lawful and the Uva Wellassa uprising as well as other freedom struggles can be deemed legal.

Theory of the traditional homeland

This was the very reason late Foreign Minister Mr. Lakshman Kadirgamar spent nearly a full decade in attacking that lobbying strategy of the LTTE. He successfully ensured that there was a global rejection of the Eelamist theory that the Tamil people acting alone has the right to self determination. It is the entirety of the Sri Lankan people; the Sinhalese,

Tamils, Muslims, Burgher acting together who have the right to self determination. Mr. Kadirgamar also demolished the LTTE theory of the traditional homeland.

That is why the international community finally accepted that the LTTE was not a ‘liberation movement’, that they were not engaged in an ‘independence struggle’. Therefore the international community started accepting our position that violence perpetrated by the LTTE was unlawful even under International Law, that those acts were criminal, and

what the LTTE was doing amounted to terrorism and therefore that the LTTE was a terrorist organization. That was how the international proscription of the LTTE commenced. We cannot and should not ever forget Mr. Kadirgamar’s contribution towards the elimination of the LTTE.

We are actually indebted to him for ever. On a day like this, we have to remember him with a great degree of gratitude and appreciation. I need to also add that, he really loved and appreciated our security forces.

He held them in high esteem. In view of the need for an international comprehensive Convention on Terrorism, India mooted a single convention on terrorism which contains amongst other provisions a definition of terrorism.

This draft is being debated by countries for the last decade in New York, without consensus emerging. At the end of 2006, we came out with a very indigenous definition on terrorism under the Emergency Regulations. This was made after extensive study of the Indian definition, the UK’s Anti Terrorism Law and the USA’s Patriotic Act.

Early this year (2009) Sri Lanka again listed the LTTE as a terrorist organisation. This is the local legislative response to LTTE terrorism.

Internationally following the initiatives by the late Foreign Minister and currently continued by Foreign Minister Rohitha Bogollagama and the Foreign Secretary Dr.Palitha Kohona, the LTTE was proscribed by Canada, US, UK, EU, India but unfortunately not in Australia.

Soon after 9/11 the Security Council took this new initiative and the famous resolution 1373 was adopted, applicable to all member states. This declares 17 organisations including Al Qaeda, Kurdish Republican Army and the LTTE as terrorist organisations. Member states are required to take certain measures to stop fund raising activities. Australia also enacted these laws.

By virtue of that LTTE is declared a terrorist organisation in Australia and thus required to prevent terrorist funding. But still the LTTE is not a proscribed terrorist organisation on Australian soil.

We have to continue our Foreign Ministry initiative to engage the Australian government extensively to get the LTTE proscribed.

The elimination of the LTTE here does not mean an end to LTTE internationally. A weakened LTTE still exists overseas thus there is the need to continue our diplomatic push to get the LTTE proscribed in other countries under national laws. The military operations would have come to a conclusion but the next fight will be on the diplomatic front to ensure the complete demolition of this terror outfit.

Crack down on LTTE international cells

In US, UK, France and Australia, there have been major successes in attacking LTTE cells and fund raising initiatives. In particular Operation Osmium conducted by Scotland Yard as well as Operation Halophyte by the Australian Federal Police have led to major breakthroughs, leading to the arrest of major suspects and prosecutions. The FBIs crackdown on the LTTE cell in New York had been so successful the suspects in the end agreed to plead guilty.

Operation Halophyte was initiated following a confidential memo submitted by the then Sri Lankan Envoy Maj.Gen. Janaka Perera on the fund raising activities conducted by LTTE operatives in Australia.

Four suspects were arrested in connection and the main suspect P. Jeyakumar died of an heart attack before the arrest was made.

It has been found the first LTTE aircraft was procured by the funds collected by this suspect. The arrests were made in May 2007 and the prosecution began in July the same year.

The case is still continuing. Jayakumar was posthumously conferred a Mahaveer title which only three others so far have received including Balasingham, by Prabhakaran and a parallel funeral in Kilinochchi while his last rights were being performed in Sydney.

Operation Osmium by Scotland Yard was initiated after a close surveillance on three LTTE leaders who organized a mass rally in Hyde Park in London in 2005. Four were arrested in the operation including the London’s LTTE leader A.C.Shanthan (51). The case has been concluded with convictions but the suspects are yet to be sentenced.

US

This was one of the most successful operations conducted by a foreign state against the LTTE. Four LTTE operatives S.Sarachandran, S.Sabaratnam, T. Thanigasalam and N.Yogarasa pleaded guilty on January 27, 2009 to all charges including conspiracy to acquire several dozen surface to earth missiles and provide material support to LTTE.

They were caught in an LTTE undercover sting operation while attempting to purchase heat seeking anti aircraft missiles, missile launches and 500 AK-47 automatic rifles. They face a statutory sentence of 25 years in prison.

The Director of American Wing of the LTTE Karunakaran Kandasamy from Queens, NY was also arrested by the FBI in a separate case. Karunakaran operated through a front organisation called the World Tamil Coordinating Committee (WTCC). The crackdown on the LTTE is still continuing in the US.