COMMENTARY: Plucked peace flower

By Bruce Fein | Tuesday, June 3, 2008

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Out of Sri Lanka's nettle of war the flower of peace can be plucked with a free and fair referendum on Tamil statehood. That was an unwritten insight of U.S. Ambassador Robert Blake in a recent interview with the Sunday Observer newspaper. More on that later.

A grisly civil war between Sri Lanka's Tamils and the Sinhalese-dominated government of Sir Lanka (GOSL) has convulsed the island nation for more than three decades. Tens of thousands have been slaughtered. Hundreds of thousands have been displaced. Government sponsored assassinations, kidnappings, disappearances, rape and arbitrary detentions have become commonplaces. Four Tamil members of parliament have been murdered. Tamil journalists are regularly detained, tortured or disappeared. On Feb. 2, 2007, the Asian Human Rights Commission found: "A disappearance every five hours [in Sri Lanka] is a result of deliberate removal of all legal safeguards against illegal detention, murder and illegal disposal of bodies."

The former Sri Lankan minister for foreign affairs similarly protested in the Sunday Leader (Jan. 28, 2007): "Kidnappings, abductions, and killings have become common incidents. No matter who does it, as a government we are responsible." The GOSL was expelled from the United Nations Human Rights Council, after it renounced a 2002 Cease Fire Agreement in favor of a military solution entailing the extermination of the Tamil Tigers.

But the peace solution to Sri Lanka's descent into hell was discerned by Mr. Blake - even if unwittingly - in an interview published in the Sunday Observer on May 25. The subtext affirmed the right of the Tamil people to determine their own political destiny without dictation by Tamil Tiger leader, Velupillai Prabharkaran, or by any other person or organization. The ambassador conjectured that the Tamil people "are not seeking an independent Tamil Eelam which Prabharkan is seeking." Indeed, he speculated that in a free and fair statehood referendum, a staggering 95 percent of Tamils would favor a political solution within a united Sri Lanka.

But the ambassador knows that neither the United States nor international practice accepts statehood determinations based on political stargazing, but on free and fair referenda that reliably express the sentiments of the majority. That is the core meaning of self-determination. East Timor, Eritrea and Montenegro are recent examples. (Kosovo declared its independence by parliamentary vote).

The civil war in Sudan ended with a guaranteed self-determination vote in the south in 2011. In Canada, Quebec has twice voted on independence, and rejected the option twice. The United States permits Puerto Rico an independence vote, which has never attracted more than a tiny 4 percent.

A Tamil referendum on statehood in Sri Lanka could be organized and conducted on the model of the United Nations Mission in East Timor established by Security Council Resolution 1246 and operated from June to September 1999. Its mandate was to organize and conduct a referendum on the basis of a direct, secret and universal ballot, in order to ascertain whether the East Timorese wished special autonomy within the unitary Republic of Indonesia, or East Timor's separation. Virtually every East Timorese voted for independence.

Pending the Tamil statehood vote, the contemplated U.N. Mission in Sri Lanka would be given delegated power from the GOSL to exercise all legislative and executive authorities, including administration of justice, in Tamil demarcated areas in the north and east, where all military hostilities from whatever source would cease. The Tamil Tigers would decommission but not surrender their arms. Human-rights observers would be invited to monitor the referendum. Freedom of speech, press and political association would be protected.

A Tamil statehood referendum would be superfluous if Mr. Blake accurately assessed that 95 percent of Tamils would vote to remain in a unitary Sri Lankan state. But his assessment probably overlooked odious landmarks in Sri Lanka's history that might incline Tamils towards independence:

(1) The Citizenship Act, which denied civic and political rights to 1 million Tamils of Indian descent and relegated the remaining Tamils to a Sinhalese majority tyranny.

(2) The revocation of constitutional safeguards for the Tamil minority in the new 1972 Republican Constitution imposed without popular ratification.

(3) The statement of S.J.V. Chelvanayakam, leader of the Tamil United Liberation Front, after winning a byelection in 1974 where he sought a mandate for Tamil statehood: "The National Convention of the Tamil United Liberation Front meeting at Pannakam ... on the 14th day of May 1976, hereby declares that the Tamils of Ceylon ... are a nation distinct and apart from the Sinhalese and this Convention announced to the world that the Republican Constitution of 1972 has made the Tamils a slave nation ruled by the new colonial masters, the Sinhalese, who are using the power they have wrongly usurped to deprive the Tamil nation of its territory, language, citizenship, economic life, opportunities of employment and education, thereby destroying all attributes of nationhood of the Tamil people."

(4) The statement of President J.R. Jayawardene to the Daily Telegraph on July 11, 1983, while state-organized race rioters were slaughtering Tamils by the thousands and displacing more than 100,000: "I am not worried about the opinion of the Tamil people ... now we cannot think of them, not about their lives or their opinion ... [T]he more you put pressure in the north, the happier the Sinhala people will be here. ... Really if I starve the Tamils out, the Sinhalese people will be happy."

The more things have changed for the Tamils since Mr. Jayawardene, the more they have stayed the same. A free and fair referendum on Tamil statehood is the sole plausible strategy for bringing peace to both Tamils and Sinhalese.

Bruce Fein is a constitutional and international lawyer with Bruce Fein & Associates and an attorney with Tamils for Justice, an organization which supports a Tamil statehood referendum.

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