Leader of the UNP Ranil Wickremesinghe while urging the European Union Council to appeal against last month’s decision by its General Court to lift the ban on the LTTE imposed on May 29,2006, yesterday expressed regret that President Mahinda Rajapaksa had still not taken any steps in that regard.
“I will also take up this matter with the Ministry of Foreign Affairs, Netherlands and the Foreign and Commonwealth Office, United Kingdom,” Wickremesinghe said adding that Rajapaksa was mollycoddling the LTTE, with an eye on the next presidential election.
Wickremesinghe observed that the President had failed to challenge the LTTE’s appeal against its proscription by the European Union (EU) Council and was disinterested in contesting the ban on the LTTE being overturned, even though nearly one month had lapsed.
“President Rajapaksa’s conduct has clearly indicated who is in toe with the Tigers. The LTTE was bribed at the 2005 presidential election. Otherwise, I would have been elected President. For the last ten years Mahinda has been unfairly accusing me of being a traitor, but it is he who is in touch with the LTTE.
When I went to London last month to meet members of the UNP UK branch, the government accused me of meeting the Tamil diaspora. I challenge the President to reveal as to whom he had met during his recent visits to the US and Europe without levelling baseless allegations against me.”
Wickremesinghe has in his letter to the High Representative of the European Union for Foreign Affairs and Security Policy Federica Mogherini, stated that the judgment of the EU General Court was based on a procedural irregularity rather than a substantive assessment. “Nowhere has the Court concluded that the LTTE is not a terrorist organization or that they have ceased operations. In fact the Court has stressed that 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 Common Position 2001/931 (para 226).I believe that the EU Council should take steps to rectify the procedural errors and at the same time canvass the judgment in its Court of Justice.”
The text of Wickremesinghe’s letter to Federica Mogherini: “As you are probably aware the General Court of the European Union by its judgment of the 16th of October, 2014, annulled and repealed several Implementing Regulations on specific restrictive measures directed against certain persons and entities with a view to combating terrorism insofar as those measures concern the Liberation Tigers of Tamil Elam (LTTE).
The European Union and the United States and some other countries took these measures after the assassination of Sri Lanka’s Foreign Minister Lakshman Kadirgamar.
This judgment was consequent to an application to that effect made by the LTTE (Applicant) against the Council of the European Union (Defendant) with the Kingdom of Netherlands, the United Kingdom of Great Britain and Northern Ireland and the European Commission (Interveners).
The LTTE presented seven arguments (pleas) in support of their application for annulment and the court’s findings in respect of each, is as follows :-
(1) (i) inapplicability of Regulation No. 2580/2001 to the conflict between the LTTE and the Government of Sri Lanka.
Rejected on the basis that there is no rule, humanitarian law that precludes the adoption of measures such as the freezing of funds, designed to stop the financing of terrorism, wherever it is committed.
(2) (ii) wrongful categorization of the LTTE as a terrorist organization for the purposes of Article 1(3) of Common Position 2001/931
Rejected on the basis that the perpetration of terrorist acts by participants in an armed conflict is expressly covered and condemned as such by international humanitarian law.Further, the existence of an armed conflict within the meaning of international humanitarian law does not appear to preclude, in the case of a terrorist act committed in the context of that conflict, the application not only of provisions of that humanitarian law on breaches of the laws of war, but also of provisions of international law specifically relating to terrorism.That the LTTE is therefore wrong to claim that, in international law, the notions of armed conflict and of terrorism are incompatible.
(1) (iii) lack of any decision taken by a competent authority. It was appropriate to uphold the present plea insofar as it concerns the Indian authorities and to reject it insofar as it concerns the UK authorities.
(2) (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 were taken together with plea (ii).
The Court went on to hold that it is apparent from the foregoing considerations that the Council has failed to comply with those requirements of Common Position 2001/931. The court considers that approach contravenes the two-tier system established by Common Position 201/931 on terrorism.
In the light of all the foregoing considerations, from which it is apparent that Regulation No. 2580/2001 is applicable in the case of armed conflict and, moreover, that the Council infringed both Article 1 of Common Position 2001/931 and — in the absence of a reference in the statement of reasons to decisions of competent authorities relating to the acts imputed to the LTTE annulled insofar as they concern the LTTE.
(3) (vii) Infringement of the principles of proportionality and subsidiarity
The Court accepted this argument. The court held that the contested regulations should be annulled insofar as they concern the LTTE.
The Court has maintained (suspended) effects of Implementing Regulation No. 790/2014 for three months from the date of judgment.
On an examination of the judgment it is manifestly clear that nowhere has the court concluded that the LTTE is not a terrorist organization or that they have ceased operations.In fact the Court went on to stress 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 Common Position 2001/931 (para 226).The court also stated that the absence of any new terrorist act in respect of a given six month period does not in any way mean that the Council should withdraw the person or group concerned from the list relating to frozen funds.
As the Court has already found, nothing in the provisions of Regulation No. 2580/2011 and of Common Position 2001/931 precludes the imposition or maintenance of restrictive measures on persons or entities that have in the past committed acts of terrorism, despite the lack of evidence to show that they are at present committing or participating in such acts, if the circumstances warrant it.
Briefly the judgment is based on a procedural irregularity rather than a substantive assessment. In such an instance our considered view is that the proscription cannot be considered void ab initio. It would only be considered as voidable if after the defendant has been given an opportunity to rectify the procedural shortcomings and does not do so.
I believe that the Council should take steps to rectify the procedural errors and at the same time canvass the judgment in the Court of Justice of the European Union. It is also my view that the most appropriate party to take action to lodge an appeal would be either the Defendant or one of the Interveners. In the circumstances I would earnestly request Your Excellency to take such action as would be necessary to lodge an appeal against this judgment. I say this because, if any other party lodges an appeal it would give rise to an unnecessary and avoidable question of locus standi. I also expect to follow this matter up with the Ministry of Foreign Affairs, Netherlands and the Foreign and Commonwealth Office, United Kingdom.”