The Prosecutor v. Ramalingam/Liberation Tigers of Tamil Eelam (LTTE)

Court	District Court of The Hague, The Netherlands
Case number	BU9716
Decision title	Judgment
Decision date	21 October 2011
Parties	The Public Prosecutor Ramalingam
Categories	Crimes against humanity, War crimes
Keywords	deprivation of liberty, Murder, Non-international armed conflict
Links	Judgment
Other countries involved	Sri Lanka

Summary

The Liberation Tigers of Tamil Elam (LTTE) was founded in 1976 in response to the growing feeling amongst the Tamil minority in Sri Lanka during the 1960s and 1970s that they were discriminated against by the Singhalese majority. Ultimately, a comflict ensued that developed into a guerilla war opposing the LTTE to the Singhalese with the objective of attaining independence for the Tamil minority.

The present case concerns one of five ethnic Tamils, all naturalised Dutch citizens, charged by the Public Prosecutor of membership in the LTTE and having funded its activities from The Netherlands. In the course of the trial before the District Court of The Hague, the court found that the defendant was a leader of the Tamil Coordinating Committee in The Netherlands, and therefore a member of the LTTE itself. The defendant had undertaken various fundraising activities through the sale of lottery tickets, collecting donations at meetings and extorting money from Tamils living in The Netherlands. Having identified the LTTE as a criminal organisation, in line with US, Indian, EU and Canadian policy, the Court convicted the defendant of membership in and participating in the LTTE and sentenced him to 5 years’ imprisonment.

Procedural history

The Public Prosecutor indicted the defendant (and four others) for the following charges:

That from 10 August 2004 until 26 April 2010, the defendant participated in an organisation, the objective of which was to commit terrorist offences (Count 1A).

That from 1 October 2003 to 26 April 2010, the defendant participated in an organisation, the objective of which is to commit crimes against humanity, war crimes and domestic criminal offences. In particular, that the defendant recruited others for armed combat in Sri Lanka without the permission of the King; conscripted or enlisted children under the age of 15 into armed groups in Sri Lanka; imprisoned members of the Tamil civilian population in Sri Lanka; and murder (Count 1B).

That the defendant is alleged to have participated in and continues to participate in a national criminal organisation (Counts 2 and 3).

That the defendant committed a number of offences against the Sanctions Act (Count 4).

Finally, that the defendant incited others to commit any criminal offence or act of violence against the Sri Lankan authorities, in particular, the dissemination of written material and images containing incitement to this effect (Counts 5 and 6). See pp. 2-6 of Decision.

Legally relevant facts

In 1990, the LTTE was in control of the northern and eastern part of Sri Lanka. To the local population, the LTTE was a de facto government with its own armed, land and naval forces, a limited air force, police force and its own dispensation of justice and its own tax system.

The United States, India, the EU and Canada have all placed the LTTE p a list of prohibited terrorist organisations (p. 7).

The defendant was a member of the Tamil Coordinating Committee in The Netherlands and of the LTTE for which he regularly took part in meetings and fundraising activities (p. 31).

Core legal questions

Was there an armed conflict in Sri Lanka at the relevant time for the purposes of the offenses charged under Counts 1A and 1B?
Does the principle of individual criminal responsibility for war crimes enshrined in Article 6(2) of Additional Protocol II preclude criminal responsibility for the actions of a group?

Specific legal rules and provisions

Article 3 common to the 1949 Geneva Conventions.
Article 1(4) of Additional Protocol I to the 1949 Geneva Conventions.
Article 6 of Additional Protocol II to the 1949 Geneva Conventions.
Article 25 of the Rome Statute of the International Criminal Court.
Articles 26(1), 31(1), 55(1) and 55(5) of the Dutch Weapons and Ammunition Act.
Articles 46, 83, 140(a), (b) and (4), 157, 168, 176(a) and 205 of the Dutch Criminal Code.
Articles 3(f) and 4(1)(e) of the Dutch International Crimes Act.
1977 Sanctions Act.

Court's holding and analysis

Charges under counts 1A and 1B are based upon crimes committed in the context of an armed conflict in Sri Lanka. It is therefore necessary for the Court to determine whether an armed conflict did indeed exist in Sri Lana at the relevant time, as distinct from organised crime. The Court finds that the armed forces of the LTTE were comparable to those of the government. Combat did not bear the marks of internal disorder and tension, like riots or other isolated and sporadically occurring acts of violence. Indeed, the LTTE bore all the marks of an independent state: it had a population it effectively controlled, it had its own armed forces, judiciary and tax system. There was therefore a non-international armed conflict between the Sri Lankan authorities and the LTTE. This conclusion is not undermined by allegations that the Tamils were discriminated against in Sri Lanka. Short of the defence sufficiently substantiating that the state of Sri Lanka can be considered a racist regime within the meaning of Article 1(4) of Additional Protocol I to the Geneva Conventions, the conflict remains non-international (pp. 12-14).

The Court understands Article 6(2) of Additional Protocol II to mean that a person can be prosecuted for offences related to the armed conflict if he committed them in person or in some form of participation, but that he cannot be prosecuted if this is not the case. Under Count 1B, the defendant is charged with membership in a criminal organisation. Whilst the Court agrees with the prosecution that this is a form of individual responsibility that would, in theory, not be incompatible with Article 6(2), there is no further individual responsibility for the commission of the offences by the organisation and to allow prosecution on such a ground would amount to circumvention (pp. 15-16).

The Court convicted the defendant of belonging to and participating in a national criminal organisation and of violations of the 1977 Sanctions Act (p. 33). He is sentenced to 5 years’ imprisonment (p. 37).