EU Court rejects move to lift ban on LTTE

The European Union’s General Court this week rejected an appeal to lift the proscription of the Liberation Tigers of Tamil Eelam (LTTE) as an international terrorist organisation within Europe.

The petitioners, the European Political Subdivision of the LTTE based in Denmark, were ordered to pay their own legal costs and those incurred by the Council of the European Union (EU). They had applied to annul the relisting of the LTTE as a terrorist organisation by the European Council in January 2019, ten years after the military defeat of the LTTE.

The European Council had held that in 2019 that the LTTE’s “international fundraising and revival capacities remained” despite its military defeat ten years earlier.

The LTTE was first listed as a terrorist organisation by the EU in 2006.

The EU’s position against the LTTE was supported by the United Kingdom and Northern Ireland. The Court held that the existence of an armed conflict within the meaning of international humanitarian law and EU law does not exclude the prevention of terrorism.

The Court rejected multiple pleas lodged by the LTTE branch in Denmark before dismissing the action in full. The argument that the LTTE had transformed into a transnational network composed of various divisions which respects Tamil rights and the peaceful enjoyment of the right to self-determination, was also rejected. It also stated: “In fact, a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct in which they engage in order to attain them”.

The European Council, supported by the UK, contended that the Court should dismiss the LTTE’s action as inadmissible; in the alternative, dismiss the action as manifestly unfounded; and to order that the applicant pay costs. The Court rejected the grounds of inadmissibility.

Among other things, the applicant for the LTTE submitted that, “in any event, the acts attributed to the LTTE did not pursue a terrorist aim because they occurred in the context of an armed conflict governed by international humanitarian law”.

He stated that, until 2009, the Tamil people's fundamental rights were denied by the Sri Lankan Government and that the people suffered serious discrimination. The LTTE participated in a legitimate armed conflict with the aim of ensuring the right of the Tamil people to self-determination.

“That right to self-determination is part of jus cogens, was enshrined in Article 1(2) of the Charter of the United Nations and has been recognised by the International Court of Justice and by the European Union, in particular by the Court of Justice of the European Union and by the Member States, including the Netherlands,” the application said.

The applicant argued that humanitarian law, which was therefore applicable, did not preclude recourse to force in such circumstances. In particular, it did not prohibit the taking of human lives in the course of war, which included not only those of active combatants, but also those of civilians.

The Court held that, according to settled case-law, the existence of an armed conflict within the meaning of international humanitarian law did not exclude the application of provisions of EU law relating to the prevention of terrorism to any acts of terrorism committed in that context.

In fact, Common Position 2001/931[which applies to persons, groups and entities involved in terrorist acts] “makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law”, the Court said. “Moreover, the objective of the European Union and its Member States is to combat terrorism, whatever form it may take, in accordance with the objectives of current international law.”

The Court does state that, “it cannot be denied that classifying as terrorist acts the actions of a movement aimed at exercising the right to self-determination would cause that right to be infringed”. But it should be observed that, “in order to exercise the right to self-determination, a people or the inhabitants of a territory may have recourse to means that fall under Article 1(3) of Common Position 2001/931”.

Article 1(3) of Common Position 2001/931 adopted by the EU sets out the meaning of "terrorist act" as: “intentional acts which, given their nature or context, may seriously damage a country or international organisation and which are defined as an offence under national law”.

The Court also states: “In fact, a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct in which they engage in order to attain them.”

The Court rejected multiple other pleas in law lodged by the applicant before dismissing the action in full. The argument of the applicant that, after its military defeat in 2009, the LTTE had transformed into a transnational network composed of various divisions which respect Tamil rights and the peaceful enjoyment of the right to self-determination, was also rejected.

The background to the dispute was that, on 28 September 2001, the United Nations Security Council had adopted Resolution 1373 (2001) to combat terrorism and, in particular, the financing of terrorism. All States were, inter alia, to freeze without delay funds and other financial assets or economic resources of persons or entities who commit, or attempt to commit, terrorist acts or participate in or facilitate thereto as well as entities acting on behalf of, or at the direction of such persons and entities.

On 27 December 2001, having regard to the implementation of Resolution 1373 (2001), the Council of the European Union gave effect to the measures in Common Position 2001/ 931, adopting Regulation ( EC) No 2580/ 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. The LTTE of which the applicant claimed to be the European Political Subdivision, had been included in the lists of persons and entities associated with terrorist acts.