Serendipity: Tamils and Terror Australis

The three Tamil men accused of terrorism by the AFP

Today three Tamil men walked free from the Supreme Court after defeating serious terror charges under the Criminal Code, and pleading guilty to the minor charge of providing funding to an organisation listed under the Charter of the United Nations Act.

It was an extraordinary case, and highlights the dangers in our terror laws. My own role in the case was as lead counsel for the defence, especially during the Criminal Code aspects of the trial.

Once my involvement was completed, I wrote the following article for Overland which was published today.

On 1 May 2007, the Australian Federal Police (AFP) used the Commonwealth Criminal Code to charge three prominent members of the Australian Tamil community with serious offences, including being members of a terrorist organisation, namely, the Liberation Tigers for Tamil Eelam (LTTE or Tamil Tigers). The charges carried penalties of twenty-five years jail.

The background was as follows. In February 2002, the LTTE and the government of Sri Lanka signed a ceasefire overseen by a Norwegian peace-keeping force. The situation remained fragile and there was considerable distrust on both sides, but the government no longer proscribed the LTTE as a terrorist organisation. On Boxing Day 2004, the Asian tsunami hit the coast of Sri Lanka, particularly devastating the Tamil-controlled coastline. Humanitarian aid was desperately needed but the Sri Lankan government refused to permit any foreign aid to go direct into Tamil Eelam. It decreed instead that all assistance needed go through the government, a procedure that would have caused tragic delays.

Major aid organisations defied the instructions and delivered aid directly to the LTTE, which they found to be far more efficient than the government. Indeed, in the Tamil-controlled parts of Sri Lanka, aid agencies dealt exclusively with the LTTE.

In the meantime, the Tamil community around the world began raising funds. Much of this was directed through the Tamil Rehabilitation Organisation, which had an office in Colombo and operated openly in Sri Lanka.

Seventeen days after the tsunami struck, the Sri Lankan High Commissioner in Canberra formally complained to the AFP that Tamils in Australia were raising money for tsunami aid that was being diverted to the LTTE for terrorist activities.

It remains surprising that any credence was given to the allegations. With aid of any kind only just reaching Sri Lanka, it is hard to see what evidence could underpin allegations of material funnelled to terrorist activity. In any case, the complaint was clearly made in furtherance of the conflict between the Sri Lankan government and the LTTE.

In Sri Lanka, the Tamil community constitutes a large majority in the northern part of the island, but a small minority in the country overall. Tamils are a distinct people: they are culturally different from the dominant Sinhalese, have a different heritage, speak a different language and most have a different religion. Prior to colonisation by the Portuguese and then the British, the Tamils had their own separate kingdom on the island.

The Sinhalese have a proud Buddhist tradition. The daughter of the great Indian emperor Asoka brought a shoot of the Bodhi Tree (under which the Buddha obtained enlightenment) from India to Sri Lanka, and 2500 years later it still stands – the oldest documented tree planted by humans in the world. A tooth of the Buddha, recovered from the ashes of his funeral pyre, is venerated in the Temple of the Tooth in Kandy. Most Tamils, by contrast, are Hindu.

During the colonial period, the Tamils were generally better educated and formed the backbone of the civil administration. This permitted resentments against them to grow.

Independence was granted in 1947, just as in India. But whereas India was partitioned, Sri Lanka was not. As a result, the Tamils became a permanent minority in the new nation. Racist laws against the Tamils were enacted almost immediately. Those whose families had been brought to Sri Lanka by the British during colonial times – often more than a century earlier – were deported to India, a country they and their families had never known.

To win government, a political party needed to court the majority Sinhalese vote, and a process of parties outbidding each other in the demonisation of the Tamils ensued. The measures adopted against the Tamils became increasingly discriminatory, to the point where they were effectively denied tertiary education altogether and even tuition in their own language. Politicians whipped up pogroms in which thousands died, often with the police looking on or participating, and systematic ‘disappearances’ of Tamils were common.

Tamils began a violent military insurgency in the 1970s. It included conventional warfare but also featured measures such as suicide bombing, generally directed against political leaders opposed to the Tamil cause. The Tamils sought a separate homeland, Tamil Eelam, in the north of the island – and for decades, in fact, they ruled such a homeland. The LTTE led the insurgency although there were other groupings, sometimes in alliance with the LTTE, sometimes separate.

The government of Sri Lanka has one of the worst human rights records in the world. Anyone interfering with its rule is at risk of extrajudicial murder. Many journalists and editors – even those of Sinhalese background – have been killed.

Clearly, Australia should not have permitted its resources to be diverted to assist in a civil war. Nonetheless, the AFP embarked on a multi-million-dollar spending odyssey in response to the Sri Lankan High Commissioner’s complaint, including multiple overseas trips by several officers. According to answers produced in parliament, the AFP spent no less than $5 271 706.91 on its investigation.

The Australian Attorney-General has the controversial power under the Criminal Code to list an organisation as terrorist. Both the current and previous incumbents have considered proscribing the LTTE but declined to do so, even after considering material that went well beyond evidence admissible in court. In fact, the LTTE are not proscribed in most countries around the world.

Members of the Tamil community, accordingly, thought they were entitled to deal with the LTTE – which was, after all, the de facto government of their homeland. Nonetheless – even though the Attorney-General had never listed the LTTE as a terrorist organisation, and even though at the time of the alleged offences the LTTE was not proscribed as terrorist even in Sri Lanka – the AFP set out to prosecute, under the Criminal Code, those men alleged to have sent aid to the LTTE.

The burden of the prosecution case was that the accused sent money to the LTTE (there were other allegations, but this was the central one). The prosecution said it did not matter if that money was for the purpose of charity – the Act makes no exception for such circumstances. Not surprisingly, when the charges were laid, major international aid organisations immediately feared that they too would be subject to criminal charges. After all, they had done exactly the same thing as the accused men. Privately, the authorities reassured these organisations that they would not be charged. That reassurance, of course, itself raises a serious issue about the rule of law: where a law is so broad that it is a matter for the subjective choice of police or prosecutors as to who will be charged, it can be (as it was in this case) applied selectively.

The prosecution set out to prove that the LTTE was a terrorist organisation under the Criminal Code. To do so, they had to prove that it was responsible for terrorist acts.

Normally, the foreign policy of Australia is a matter of some delicacy, but the terror laws handed power to make substantive decisions – in this case, the attitude of our country to a civil war in Sri Lanka – to police, something which no responsible government should countenance. Once the police were permitted to view that conflict through the lens of terrorism, it had a major impact on our foreign relations concerning an important issue.

To establish that the LTTE was a terrorist organisation, the prosecution sought to adduce primary evidence of violent acts in Sri Lanka, such as suicide bombings, and then call experts to opine that the acts were attributable to the LTTE. The process posed significant problems for our criminal justice system. The accused had no personal knowledge of these highly prejudicial violent events, and yet the evidence was to be led against them in a trial before a jury.

Furthermore, the government of Sri Lanka was at war with the LTTE. Every witness from Sri Lanka was in some way engaged in that war on behalf of the government. No witness statement was provided without the express approval and authority of the Sri Lankan government. All the evidence was vetted by the Sri Lankan Solicitor General, who conferred with and coached the Sri Lankan witnesses. He then claimed legal professional privilege for his discussions (since he was a witness himself).

None of the normal safeguards for a police investigation in Australia were available. It was clear that not all relevant evidence had been brought forward, as the accused and their representatives could not safely travel to Sri Lanka to gather evidence or examine the evidence relied upon by the prosecution and no documents or records could be subpoenaed.

The legal process required an Australian jury to assess the complex workings of the Sri Lankan political situation, and then pass judgement on it. They were required to assess evidence about controversial events in Sri Lanka when they had none of the cultural background normally necessary for such judgements.

As it happens, the LTTE has been listed as a terrorist organisation in Australia – not by the Attorney-General but by the then Foreign Minister, Mr Downer. The United Nations has never listed the LTTE as terrorist, but did call for the freezing of the assets of terrorists. So, using legislation to give effect to UN resolutions (The Charter of the United Nations Act), Downer listed the LTTE as an organisation that should have its assets frozen. It then became a little-known offence, carrying five years imprisonment, to make an asset available to the LTTE. This much less serious alternative charge was added some months after the three Tamils were initially charged under the Criminal Code.

In the end, after months of legal manoeuvring, which all but bankrupted the accused men, the DPP dropped the most serious charges under the Criminal Code. The accused men pleaded guilty to these lesser charges, with the final outcome on 31 March 2010 - when they all received sentences which allowed them to walk free from court.

Last year, as the civil war came to an end, Sri Lankan government troops indiscriminately shelled hundreds of thousands of Tamil civilians trapped in a small area. On 18 May, Tamil leaders, seeking to prevent further bloodshed, arranged with international mediators that they would carry white flags and give themselves up. When they did so, they were murdered in cold blood.

In fact, throughout the war’s closing stages, Sri Lankan forces extrajudicially executed many surrendering Tamils. Film showing naked Tamils with their hands and feet bound behind them being shot dead by Sri Lankan troops has been declared genuine by Philip Alston, UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

General Fonseka, then commander of the Sri Lankan armed forces (and failed aspirant for the nation’s presidency), has said that his troops were ordered to kill any Tiger leaders attempting to surrender. The orders came, he said, from Defence Secretary Gotabaya Rajapaksa – the brother of the current Sri Lankan president. Both Rajapaksa (who has US citizenship) and Fonseka (who has a US green card) are currently under investigation in the US for war crimes and genocide. Shortly after he lost the presidential election, Fonseka was arrested by Sri Lankan government forces.

Now that the decades-old civil war is over, hundreds of thousands of Tamils remain behind barbed wire in unsanitary concentration camps. Many risk perilous voyages to other countries – including Australia.

Not surprisingly, there is tension in Australia between the expatriate Tamil community and the expatriate Sinhalese community. Both sides consider themselves wronged and misunderstood. For the Australian legal system to take sides in a dispute like this inevitably exacerbates those tensions. Recently, ASIO has delivered adverse security assessments in relation to some Tamil refugees – presumably because they had links with the LTTE, although the process lacks the transparency it should have in a democracy. ASIO’s value judgement as to which side of a foreign conflict should be regarded as ‘terrorist’ should not prevent Australia fulfilling its obligations under the UN Refugee Convention.

The Tamil community here has been regularly raided by security personnel. They have generally come to Australia to escape the danger in their homeland at the hands of security personnel, and the trauma occasioned by these raids cannot be overstated. The Tamil community is also acutely conscious of the humanitarian crisis affecting their people in their homeland, and yet they are disempowered in relation to supplying aid themselves.

In the end, the anti-terrorism laws that we have passed, and the large agencies which have been staffed to enforce them, have resulted in Australia taking sides with war criminals and adding to the misery of a terrible humanitarian crisis.

We expect more than this from our governments.

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