BARELY a day after Sri Lanka reimposed war-era travel restrictions on its Tamil-majority Northern Province, the European Court of Justice (ECJ) struck down anti-terrorism sanctions imposed on the Liberation Tigers of Tamil Eelam (LTTE) by the European Union, on a technicality.
The two events are not related, but the significance was not lost on those struggling in absentia for a Tamil homeland in Sri Lanka. The reasoning for the judgment is that the E.U. had placed the LTTE on a list of terrorist organisations in 2006, based on “imputations derived from the press and the Internet” rather than on direct investigation, as required by law. At the same time, “the Court stresses that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of [E.U.’s] Common Position 2001/931 [on the application of specific measures to combat terrorism],” the judgment said.
Though another 2006 order of the E.U. placing the LTTE on a list of terrorist organisations whose funds were frozen was not struck down, the pro-LTTE lobbies, now very active in Europe and Canada, were quick to claim victory. Supporters in Tamil Nadu, including the three regional political parties which have traditionally supported the LTTE—the Vaiko-led Marumalarchi Dravida Munnetra Kazhagam, the Other Backward Class- Vanniyar-dominated Pattali Makkal Katchi and the Viduthalai Chiruthaigal Katchi, which stands for the Scheduled Castes in northern Tamil Nadu—were vociferous in giving their own broad interpretation of the ruling and demanded that India too strike down the order that outlawed the LTTE.
LTTE’s plea The LTTE raised seven pleas in law. These were: (i) inapplicability of Regulation No. 2580/2001 [on specific restrictive measures directed against certain persons and entities with a view to combating terrorism] to the conflict between the LTTE and the Government of Sri Lanka; (ii) wrongful categorisation of the LTTE as a terrorist organisation for the purposes of Article 1(3) of Common Position 2001/931 [on the application of specific measures to combat terrorism]; (iii) lack of any decision taken by a competent authority; (iv) failure to undertake the review required under Article 1(6) of Common Position 2001/931; (v) breach of the obligation to state reasons; (vi) infringement of the rights of defence and the right to effective judicial protection; and (vii) infringement of the principles of proportionality and subsidiarity. The defendants in this case were the Council and Commission of the European Union, together with two member-states, the Netherlands and the United Kingdom. They have two months to appeal or rectify the procedural flaws to try and reimpose the ban.
Article 1(3) of Common Position 2001/931 says: “On 8 October 2001, the Council reiterated the Union’s determination to attack the sources which fund terrorism, in close cooperation with the United States.” Article 1(6) of Common Position 2001/931 says: “Member States have transmitted to the European Union the information necessary to implement some of those additional measures” to implement the United Nations Security Council resolution 1373 (2001), which, among other things, calls for preventing and suppressing the financing of terrorist acts.
In essence, the LTTE said its confrontation with the Government of Sri Lanka was an “armed conflict” according to international law, subject only to international humanitarian law and not to anti-terrorist legislation. In addition, it said continuing to keep the LTTE on the list relating to frozen funds was based on unreliable grounds which did not derive from decisions of “competent authorities” within the meaning of Common Position 2001/931/CFSP.
In the judgment, the court underlined that the E.U. law on the prevention of terrorism also applied to “armed conflicts” as defined in international law. The judgment said:
“Therefore, the LTTE cannot claim that the existence of an armed conflict precludes a possible application of E.U. law with regard to them.
“As regards the decisions of Indian authorities relied upon by the Council, the Court finds that an authority of a State outside the E.U. may be a ‘competent authority’ within the meaning of Common Position 2001/931. However, the Council must carefully verify at the outset that the legislation of the third State ensures protection of the rights of defence and of the right to effective judicial protection equivalent to that guaranteed at E.U. level. The Court finds that the Council did not carry out such a thorough examination in the present case.
“The Court finds that the contested measures are based not on acts examined and confirmed in decisions of competent authorities, as required by Common Position 2001/931 and case-law, but on factual imputations derived from the press and the Internet.
“Therefore the Court annuls the contested measures while temporarily maintaining the effects of the last of those measures in order to ensure the effectiveness of any possible future freezing of funds.”
Also noting that sanctions might be applied in future against the LTTE, the court said assets that were frozen should remain so “temporarily”.
Sri Lankan reaction Sri Lanka voiced its “concern” over the decision and said that “it is noteworthy that the Court has stressed the annulments to be ‘on fundamentally procedural grounds’ and ‘do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group’.”
In what appears to be an oblique critique of the judgment which held that the member-states did not carry out investigations against the organisation before proscribing it, the External Affairs Ministry press note said: “It is noteworthy that a number of E.U. member countries have carried out investigations against LTTE activists in their territories, some of which are ongoing, while some have resulted in the accused being sentenced by Court.”
Sri Lanka also said that it “is further mindful that the ECJ decision may have an impact, including from a security perspective, on the large majority of Sri Lankans living in E.U. territory, as well as E.U. citizens of Sri Lankan origin, who are likely to come under pressure once again by pro-LTTE activists.” A Press Trust of India report said that Sri Lanka would contest the judgment.
Soon after the verdict, the E.U. clarified on the court ruling to a Sri Lankan audience: “Separation of judicial system from the legislature is a key distinction in a healthy democracy. It is important to remember that it is a legal ruling of a court; it is not a political decision taken by the E.U. governments.”
The E.U. clarification will not find too many takers in a country where executive power is concentrated in the President. This is exactly what President Mahinda Rajapaksa hopes to capitalise on as he announced a snap presidential election for January 2015, two years before his term comes to an end. (This does not mean that he forfeits the two years. After the last snap election in 2010, a pliant Sri Lankan Supreme Court determined that the President can begin his second term after he completed five years of the first term. His second term, according to this ruling, ends on November 19, 2016.)
Rajapaksa’s United Progressive Freedom Alliance (UPFA) has been unassailable since the war with the LTTE was decisively won in 2009. Now, the chinks are showing and the latest in the list is the Uva Province, where the UPFA barely managed to stay ahead and form the government in the election held last September. The UPFA managed just 51 per cent of the popular vote, down from 72 per cent. Earlier, as expected, it had lost the Northern Provincial election, but the margin of loss had surprised some observers.
In the E.U. court ruling, Rajapaksa sees an opportunity to flog the LTTE issue, unite the people, and hope for one more election victory. Rajapaksa, who annulled a clause that allowed a President only two terms, after he was re-elected in 2010, will be the first to make a bid for a third term. The E.U. verdict does not mean much for either the pro-LTTE lobby or anyone else. But it means a lot to Rajapaksa, who is expected to win yet another election thanks to the bogey of Tamil Tigers. India, which has proscribed the LTTE, has maintained silence on the judgment. While India will not revisit its decision to ban the LTTE, it is also aware that the gap left by the organisation has emboldened the Sri Lankan government to take a series of anti-Tamil measures in the Northern Province. The nascent democratic process in the North is no compensation for the military might that has the entire territory under its rule.
Indian security agencies feel that the judgment might again lead to activity picking up in the region. They say that the majority of the former LTTE cadre have now branched out into transporting counterfeit Indian currency into India, and also shipping narcotic substances. There are also reports that they are linking up with religious extremists, who share common concerns. India has heightened its watch over these elements, and that surveillance has already yielded some results, according to security agencies.
