In the wake of Sri Lankan independence in 1948, the Sri Lankan government, in which the Singhalese were the dominant ethnic group, took several measures that privileged the Singhalese population. These measures led to ethnic tensions between Tamils and Singhalese, which, in the 1970s, prompted a desire on the part of various Tamil groups to found their own independent state in the north and east of Sri Lanka. A few of these organizations set out to achieve this through violent means. One such group was the Liberation Tigers of Tamil Eelam (LTTE), established in 1976. From its foundation, the LTTE was associated with violent campaigns, such as bomb attacks and contract killings. From 1990, the LTTE acquired ‘its own' territory in the north-eastern part of Sri Lanka, where it acted in a sort of semi-official capacity. The LTTE had its own army, police, and judicial system, and a tax structure of its own to fund its armed struggle against the Sri Lankan army. For their funding activities, the LTTE also appealed to Tamils who had left Sri Lanka and were living all over the world. Early in 2009, the Tamil Tigers were defeated by Sri Lankan government troops. That summer, a new leader of the LTTE announced that the separatist movement would fight on. The LTTE has been on the European Union's list of terrorist organizations since 2006.
Case against Thiruna E., Joseph M.J., Srilangan R., Ramachandran S. and Lingaratnam T.
In 2008, in response to information received from the Dutch General Intelligence and Security Service (AIVD), the former National Crime Squad launched a large-scale investigation into the activities of the Tamil Tigers in the Netherlands. In this investigation, Thiruna E., Joseph M.J., Srilangan R., Ramachandran S. and Lingaratnam T. came to the fore as the leaders of various Tamil organizations in the Netherlands. Such organizations play an important role in the LTTE's international network. The persons in question were suspected of raising funds for the LTTE by collecting money, holding fund-raising drives, selling DVDs and calendars, and organizing illegal lotteries.
In October 2011, the District Court in The Hague convicted the five of occupying leadership positions in the criminal organization that carried out activities on behalf of the LTTE. The court found them guilty of extorting enforced payments, and of violating the Betting and Gaming Act, the Sanctions Act, and the Anti-Terrorism and Money Laundering Sanctions Order. The five individuals were sentenced to terms of between two and five years' imprisonment. Both the defence and the Public Prosecution Service appealed against the judgment.
Supreme Court upholds Tamil Tigers' convictions in the Netherlands for offences committed during conflict in Sri Lanka
The issues addressed in the cassation proceedings included the question of whether in their capacity as LTTE members the defendants could claim they had ‘combatant status’ and that this status had entitled them to participate in the armed conflict against the Sri Lankan state in their struggle for an independent Tamil state. In that case they would be liable only for any violations of international humanitarian law. The Supreme Court ruled that they could not claim this status because international law grants it only to troops involved in an international armed conflict (in other words, an armed conflict between states) and not to fighters involved in an internal armed conflict. The armed conflict involving the state of Sri Lanka and the LTTE – during which the five defendants committed the offences of which they were convicted in the Netherlands – was an internal armed conflict and not an international armed conflict.
The cassation proceedings also considered whether the defendants could be prosecuted only in Sri Lanka for participation in the LTTE, or whether they could also be prosecuted in the Netherlands. The Supreme Court ruled on 4 April 2017 that prosecution in the Netherlands was possible.
The Hague District Court, 21 October 2011:
The Hague Court of Appeal, 30 April 2015:
- ECLI:NL:GHDHA:2015:1082 (NL)
Supreme Court of the Netherlands, Advocate General's conclusion, 11 October 2016:
- ECLI:NL:PHR:2016:967 (NL)
- ECLI:NL:PHR:2016:968 (NL)
- ECLI:NL:PHR:2016:969 (NL)
- ECLI:NL:PHR:2016:974 (NL)
- ECLI:NL:PHR:2016:975 (NL)
Supreme Court of the Netherlands, 4 April 2017:
- ECLI:NL:HR:2017:574 (NL)
- ECLI:NL:HR:2017:575 (NL)
- ECLI:NL:HR:2017:576 (NL)
- ECLI:NL:HR:2017:577 (NL)
- ECLI:NL:HR:2017:578 (NL)