Association of Humanitarian Lawyers



International human rights law binding on all countries condemns racism. Prohibitions against racism are an integral part of both treaty-based and customary international law and apply in times of both peace and times of war. Racist policies during war can constitute war crimes.1 Most scholars consider the prohibition against racism so essential to human rights that it has both a jus cogens as well as an erga omnes character.2 The international law status of racism, then, is essentially clearly and absolutely established. Thus there are only three purposes in having an international conference on racism: (1) to document incidents of racist acts and racist policies; (2) to strengthen national and international remedies for racist acts and racist policies and (3) to make urgent appeals.3

The World Conference Against Racism comes at a time when widely accepted remedies for racist acts and racism in general are being seriously eroded in a number of countries. Affirmative action programs, for example, are being dismantled in the United States.4 A number of States have apparently substituted racist speech for free speech. While on the one hand they moved the balance between free speech and racist speech increasingly in favor of free speech, leaving far more ground for racist speech, they then curtail free speech. And most ominously, an increasing number of States are “converting” racist policies into “anti-terrorist” measures. All of these backward-looking policies are apparent in the situation of the Tamil people on the island of Ceylon. It is for this reason that we consider that there is an urgent need for the participants in the World Conference Against Racism to address the plight of the Tamil people.

The situation of racism against the Tamil people on the island of Ceylon (renamed Sri Lanka by the Sinhala majority on that island) is extreme even in today’s world of rampant racism. In fact, it is severe enough to invoke one of the best remedies against severe racism -- the right to self-determination from racist regimes. This right finds expression in Protocol Additional I of the Geneva Conventions as well as in customary international law, including, especially General Assembly resolution 2526 (XXV) of 24 October 1970. This rights means that even if an ethnic group would not normally be considered to have the right to self-determination under classical self-determination principles, when they have been subjected to racist policies over a long period of time with little or no realistic chance of change, then that group has the right to resist the racist regime with the same means -- including the use of force -- that groups meeting the classical test have to resist a colonial power. Such is the situation of the Tamil people.

Of course, even a casual review of the history of the Tamil people, the Sinhala people, and their mutual occupancy of the island of Ceylon, supports a finding that the Tamil people enjoy the right to self-determination under the traditional international law formula. The tradition formula requires that a people: (1) were an independent State prior to the colonial period but forcibly amalgamated by the colonial power with another State under the colonizer’s policies of “unitary rule”; (2) have a distinct language, culture, religion and ethnicity; (3) have made their choice of separate sovereignty clearly and with strong, heavily-supported leadership; (4) have the capacity and will for self-governance. No one can challenge that the Tamil people meet this legal test for the right to self-determination.

Yet even if for political or other reasons a State would reject the self-determination of the Tamil people based on the traditional formula, no honest appraisal of the situation of the Tamil people could deny the application of the remedy of self-determination to free a people from a racist regime. The Tamil people have suffered extreme racism at the hands of the Sinhala majority on the island of Ceylon since the end of the British colonial period. All human rights bodies of the United Nations have been presented with literally hundreds of statements, both written and oral, both governmental and non-governmental, since 1983 regarding summary executions, torture, prolonged arbitrary detention, military attacks (including aerial bombings) on the Tamil civilian population, rape of Tamil women and other grave breaches of the Geneva Conventions and violations of human rights norms. There have been more than seventy reports by highly credible organizations regarding these severe racist acts against the Tamil people in the same period. The numbers of “urgent action” appeals must number into the thousands -- given that Sri Lanka has the second-worse record of disappearances in United Nations history, the vast majority of which are Tamils.

A brief overview of the facts provides more than ample evidence to support self-determination based on a pattern of racism from independence from British colonial rule up to 1983, and includes: (1) the 1948 Citizenship Act which disenfranchised over 1 million Ceylonese-born plantation workers, descendents of those originally brought to Sri Lanka by the colonial powers over 115 years earlier; (2) the “Sinhala only” language act of 1956; (3) the anti-Tamil riots in Sinhala areas in 1958; (4) the violations of the two Sinhala-Tamil political pacts; (5) the Srima-Shastri pact which made over 650,000 “plantation Tamils” stateless; (6) the denial in 1972 of equal education for Tamil children; (7) the anti-Tamil riots in Colombo in 1983 which resulted in 2,500 Tamils killed by Sinhala rioters and produced 250,000 Tamil refugees. This last event was the final blow for the Tamil people, who immediately thereafter began an armed struggle in exercise of the right to self-determination based on both classical international law and their rights to resist a racist regime. This war, a clear “last resort” response to a racist regime, continues to this day. Since armed resistance to Sinhala rule began in1983, Tamils have been gradually weeded out of most government posts and the Sri Lanka armed forces are almost exclusively Sinhala. And the numbers of Tamil refugees worldwide has soared, with over 200,000 Tamils now residing in major Canadian cities and most European countries, Australia and Asian countries with very large numbers of recent Tamil refugees.

In the course of the now nearly nineteen-year war, the successive Sri Lankan Sinhala governments have developed and perfected anti-Tamil rhetoric of the most extreme kind, with its fullest expression under the current government. Under this unrelenting torrent of verbal attacks the Tamil armed opposition group called the Liberation Tigers of Tamil Eelam (LTTE), who by law fully meet all applicable rules of the laws and customs of war for an armed force, are intentionally mislabeled “terrorists. The Tamil people as a whole are constantly called “terrorists” or accused of supporting “terrorists.” It has reached such proportions that the Sri Lanka government watches out for any attempt by human rights groups, religious groups or concerned others both inside and outside Sri Lanka to address the urgent humanitarian needs of the now-estimated 900,000 Tamil people living in shelters or even without shelter in Sri Lanka. These groups are verbally attacked by the Sri Lanka authorities as engaging in “support for terrorists.” The regime writes letters to churches, newspapers, indeed to any group in any country, publicly accusing them of aiding “terrorists.” It appears that even Tamil infants and small children, in need of food for survival, are the enemy and therefore “terrorists.”

The regime has even orchestrated hit lists on electronic media against university scholars, clergy, human rights groups and attorneys and others anywhere in the world who address the Tamil question or who merely call for full compliance with human rights and humanitarian law norms in Sri Lanka. The government tries to stifle-- by threats, orchestrated demonstrations and other hostile acts-- academic discourse at major universities in the world where scholars seek to address the situation of Tamils in Sri Lanka. In a number of these situations, the universities in question have had to call in police forces to protect the participants. In Sri Lanka, the press is severely restricted. Journalists are jailed, publications are shut down, and foreign journalists are made to conform to serious restrictions or be expelled.

The international community must resist this extreme form of racism. Even someone with only a rudimentary knowledge of applicable humanitarian law knows that under the applicable rules of armed conflict, humanitarian aid to any victims cannot be criminalized (i.e. by being labeled “terrorist”) nor can any party to an armed conflict impede fair distribution of humanitarian aid to victims. Most importantly, the LTTE (the opposing military power) cannot legally be labeled “terrorist.” Furthermore, a party to an armed conflict cannot avoid liability for its violations of humanitarian law by trying to mislabel the opposition forces as “terrorist” and trying to mislabel what is clearly a war as “terrorist-anti-terrorist” activity. Yet this is what the Sri Lankan government does over and over again.
Anyone with any knowledge of human rights law recognizes clear violations of freedom of speech and freedom of the press by Sri Lankan authorities at home and abroad.

The government’s anti-Tamil rhetoric, however, is so persistent and so threatening that even governments that should be immune are infected by it. Some governments now seem to view that Sri Lanka is exclusively Sinhala and Buddhist -- not even acknowledging the Tamil and Muslim populations on the island. As an example, the current French Ambassador to Sri Lanka was quoted as commenting how happy she was to be posted in Sri Lanka because Sri Lanka is a Buddhist country and she has “always been passionate about Buddhism.”5 She was photographed participating in Buddhist ceremonies. But only the Sinhala people in Sri Lanka are Buddhist. The Tamils are Hindu and Christian and there are also a sizable number of Tamil-speaking Muslims. It is inexcusable that any ambassador would single out one group in a supposedly multi-ethnic and multi-religious society as being the sole inhabitants. Moreover, in the context of the war in Sri Lanka over these very issues, such a comment must be viewed as extremely racist. Yet this comment received no unfavorable press. One wonders at the political and media attention if that Ambassador were instead posted to the United States, was photographed attending a Southern Baptist ceremony and commented that the United States was a Southern Baptist country and she had always been passionate about Southern Baptists.

The government has clearly shown that it seeks a military solution to the Tamil question in Sri Lanka. While this is rather obviously misguided due to the clear military success of the LTTE, the anti-Tamil racist element of the government appears to have control. The government of Norway, which has been diligent in efforts to mediate this long-standing conflict with the parties, has apparently been brushed aside by the current regime. For this reason, it is imperative that the World Conference Against Racism issue a strong message to the Sri Lankan authorities. All persons attending this conference on racism should condemn, as an issue of extreme urgency, this most egregious, all-pervasive racism by the current Sinhala regime and by certain religious leaders against the Tamil people in Sri Lanka.


1See, for example Protocol Additional I to the Geneva Conventions, Articles 75 and 85.
2Jus cogens norms are peremptory norms of international law and apply to both individuals and groups or to States. Erga omnes norms relate only to duties owed by States to the international community as a a whole.
3The interaction of non-governmental organizations with each other and with governments and international entities is essential for the realization of these purposes.
4The United Nations Sub-Commission on the Promotion and Protection of Human Rights has been especially concerned with this regression in human rights protections, and has authorized Mr. Marc Bossuyt (former member from Belgium) to undertake a study on this topic. At the 2001 Sub-Commission session, the Sub-Commission will have the Special Rapporteur’s Progress report. For further review of this initiative, see Mr. Bossyut’s Working Paper (U.N. Doc. E/CN.4/Sub.2/1998/5) and his Preliminary report (U.N. Doc. E/CN.4/Sub.2/2000/11).
5It should be noted that the government is not alone in Sinhala society in carrying out constant anti-Tamil rhetoric. There are several extreme Buddhist groups who have publicly and repeatedly stated that the Tamils must be eradicated from Sri Lanka as Sri Lanka is Buddhist. Monks of this sect of Buddhism have held anti-Tamil public rallies carrying defamatory placards and signs. There are several political parties aligned with this position who also vow to rid the island of Tamils. These Buddhist sects and extremist political parties oppose any accommodation to just demands of the Tamil people.