Thesis final - Copy

Academic year 2013/2014
Master thesis
Department of Political Science
– Global Refugee Studies
The main obstacles to durable solutions
Case-study: “Tamil refugees in India”
Project written by:
Lyubov Vavilala :
Supervisor: Bjørn Møller
October 2014

DEDICATION
I dedicate this study to my lovely sons: Sri Ram and Bharat Simha Vavilala.
You are my happiness!

ACKNOWLEDGEMENT
My heartfelt gratitude goes to my supervisor Bjørn Møller for his time, critical
questions and insightful comments which guided me during the thesis writings. I also
thank the Staff of Global Refugee Studies of Aalborg University – Copenhagen
campus for granting me tuition waiver for the second year of my study. To my
classmates, I say: “It was a great study experience and I do appreciate it!”
Special thanks to my classmate and now very good friend Gaelle for challenging me
with the critical questions and her always readiness to discuss and comment on my
research.
Last, but by no means least, I express my love and warmest gratitude to my loving
children for their understanding, especially to my youngest 6-weeks old son for
sleeping on my shoulder while I was writing this thesis. I would like to express the
deepest appreciations to my husband, Venkataramana who during these past months,
which I devoted to the writing of this thesis, has showed patience, understanding and
unconditional support and more over took a good care of our little sons; I am also
thankful to my parents Mr. and Mrs. Tsybrivskyi who always supported me in every
goal of my life.

ABSTRACT
Nowadays, among 39 million people who have been forced to flee their homes due to
conflict or natural disasters 10 million are refugees. What is the reason that so many
people still have a status of refugees despite the durable solutions proposed by
UNHCR. This study attempts to investigate the situation around Tamil refugees in
India, who are living already in state of limbo almost 30 years. The aim is to examine
what are the main obstacles to durable solutions in this situation. The core purpose
was to understand the reasons behind such poor repatriation process of Tamil
refugees as well as no efforts of local integration in India.
In this study I used one methodological tool – securitization theory and used its
theoretical foundation to build the reasoning behind the thesis. Many articles were
written about LTTE threat to the society but very less – were written about Tamil
refugees and reasons behind nowadays situation. Securitization theory revealed that
both Indian and Sri Lankan governments securitize LTTE by means of securitizing
refugees issue itself. And the national politics plays the first role in such behaviour.
That is why local integration is impossible in case of Tamil refugees and repatriation
is possible but depends on good will of those who will be returned to Sri Lanka.
Key words: Tamil refugees, durable solutions, repatriation, local integration,
securitization

Table of contents
Dedication
Acknowledgement
Abstract
Table of contents
Structure of the thesis
Abbreviations
CHAPTER ONE: Introduction to the study 1
1.1 Background to the study 1
1.2 Research questions, problem formulation and research area. 3
CHAPTER TWO: Historical and political background of the crisis 6
2.1 Origin of the conflict 6
2.2 Liberation Tigers of Tamil Eelam (LTTE) 7
2.3 Milestones of the Civil War 8
2.4 Indian involvement and Rajiv Gandhi’s assassination 10
CHAPTER THREE: Sri Lankan government activities towards
refugees’ repatriation as the evidence of security issue 12
3.1 Post-war situation and government key decisions 12
3.1.1 Lessons Learned and Reconciliation Commission (LLRC)
followed by Action Plan 14
3.2 Process of the repatriation of Tamil refugees and failed asylum seekers 16
3.3 Human rights situation in Sri Lanka 17
3.4 Government appropriation of land as “unwanting” politics
towards Tamil people 19
CHAPTER FOUR: Indian home and foreign policy towards
refugee problems 22
4.1 International norms for the treatment of refugees and refugee protection
regime in India 22
4.2 Indian Law for Protection of Refugees, Constitution and refoulment policy. 24

4.3 Contradiction between International law and Indian domestic law 28
4.4 Category I Refugees – The Tamils 29
CHAPTER FIVE: Sri Lankan refugees in India 31
5.1 Camp system and registration process on the territory of India 31
5.2 Refugee assistance from the State Government as well as
the Government of India 33
5.3 Livelihood problems and strategies in refugee camp 34
5.4 Refugees opinion about camps life and their future
together with some additional facts 35
CHAPTER SIX: Durable solutions, UNHCR and NGOs activities 37
6.1 Durable solutions 37
6.1.1 Voluntary repatriation 37
6.1.2 Local Integration 38
6.1.3 Resettlement 38
6.2 Strict rules towards NGOs in Sri Lanka 39
6.3 UNHCR and NGO on the territory of India 41
6.4 Organization for Eelam Refugee Rehabilitation (OfERR)
and Jesuit Refugee Services (JRS) 42
CHAPTER SEVEN: Theoretical framework and analysis 44
7.1 “Securitization” of the Tamil issue in Sri Lanka 44
7.2 Securitization of the refugees as an Indian legal policy? 47
Conclusion 52
Bibliography
Appendix

Structure of the thesis
The structure of the thesis is as follows. In the introduction I present background to
the study as well as the problem area within which my problem statement lies and the
aim of the thesis.
The historical and political background of the crisis has been included in the second
chapter as I think it is important for the reader to have a basic understanding of the
conflict origin which later provoked the mass influx of refugees to India. Next chapter
of this thesis is dedicated to the Sri Lankan government activities towards repatriation
process as well as the situation with human rights on the territory of Sri Lanka. Even
more, I present the information about appropriation of land by government in the area
where Tamil minority is living. In chapter four, I discuss Indian home and foreign
policy towards refugee problems based on the legal provisions. In the chapter “Sri
Lankan refugees in India”, I discuss camp system and registration process on the
territory of India as well as the refugees’ assistance from local and state governments.
Moreover, I present livelihood strategies and problems and the refugees’ opinion
about their future. Next chapter is dedicated to the UNHCR and NGOs’ positions in
India and Sri Lanka. And I will introduce the durable solutions as such. In the last
chapter of this thesis I present the theoretical framework and analyse gathered data.
In conclusion, I summarize my analysis and answer my research questions.

Abbreviations
AALCO – Asian-African Legal Consultative Organisation
AIADMK – All India Anna Dravida Munnetra Kazhagam
ALRC – Asian Legal Resource Center
AVRR – Assisted Voluntary Return and Reintegration Programme
CEDAW – Convention on the Elimination of all Forms of
Discrimination Against Women
CRC – Convention on the Rights of the Child
DMK – the Dravida Munnetra Kazhagam
EROS – Eelam Revolutionary Organisation of Students
EXCOM – Executive Committee of the High Commissioner’s Programme
GUES – General Union of Eelam Students
HRW – Human Rights Watch
ICCPR – Covenant on Civil and Political Rights
ICDS – Integrated Child Development Scheme
ICESCR – Convention on Economic, Social and Cultural Rights
ICG – International Crisis Group
IOM – International organisation for Migration
IPKF – Indian Peace Keeping Force
ISLA – Indo-Sri Lanka Agreement
JRS – Jesuit Refugee Services
LLRC – Lesson Learnt and Reconciliation Commission
LSSP – Lanka Sama Samaja Party
LTTE – Liberation Tigers of Tamil Eelam
MoD – Ministry of Defence
OfERR – Organization for Eelam Refugee Rehabilitation
OHCHR – Office of the High Commissioner for Human Rights
PARL – Peoples’ Alliance for Right to Land
PTA – Prevention of Terrorism Act
PUCL – People's Union for Civil Liberties
SIS – State Intelligence Service
SLA – Sri Lankan Arm

TNA – Tamil National Alliance
TNT – Tamil New Tigers
TULF – Tamil United Liberation Front
UDHR – Universal Declaration of Human Rights
UNHRC – UN Human Rights Council
UNPFA – United People’s Freedom Alliance
USCRI – the U.S. Committee for Refugees and Immigrants

CHAPTER ONE: Introduction to the Study
“Many people— many nations— can find themselves holding, more or less wittingly,
that ‘every stranger is an enemy’. For the most part this conviction lies deep down
like some infection; it betrays itself only in random, disconnected acts, and does not
lie at the base of a system of reason. But when this does come about, when the
unspoken dogma becomes the major premise in a syllogism, then, at the end of the
chain, there is the Lager.”
Primo Levi1
1.1 Background to the study
Sri Lanka is an island in the Indian Ocean, approximately 270 miles long and 150
miles wide, located near the Southern tip of India.2
Unfortunately this country is
famous not only for its golden beaches, misty mountains, mighty elephants, majestic
past and lovely tea (as it is stated on the Sri Lanka Tourism Promotion Bureau site)3
but also as a host – country to one of the world’s most protracted conflict. Civil war
has devastated this country for 25 years and number of peace talks has failed more
than once.4
During this protracted conflict, an estimated 70,000 people have died5
and due to
severe fighting during 2006-2007, more than 300,000 have been displaced while
another 200,000-250,000 were made homeless by the tsunami in the areas already
affected by conflict. During 2006-2007 approximately 18,000 Sri Lankans fled to
India.6
The last stage of the conflict in the north has added 200,000 displaced.7
At the end of 2012 according to the UNHCR’s Global Statistics (2012), 145.721 Sri
Lankan refugees settled in some 65 countries, whereas the majority was in India and
the rest – in such countries as France, Canada, Germany, the UK, Switzerland,
Australia, Malaysia, the United States and Italy.8
The United Nations (UN) Integrated
Regional Information Networks (IRIN) reports Indian government statistics as
indicating that, "as of 1 November 2010, there were more than 70,000 Sri Lankan
1
Spence, Jonathan D. (Ed.) (1990) p.1
2
George, M., (2013) p.170
3
Sri Lanka Tourism Promotion Bureau (2014)
4
For more details see chapter II Historical and Political Background.
5
Feinstein International Center (2007).
6
HRW (2007)
7
Jaspars., S., (2009)
8
UNHCR, (2011) table 2, page 45

refugees living in some 112 camps in Tamil Nadu (South India) and 32,467 living
outside the camps".9
Despite the end of the civil war in 2009, Sri Lankan asylum seekers abroad exceeded
in number the Sri Lankan refugees who choose voluntary repatriation. In 2011, the
rank of Sri Lanka among the highest source countries of asylum seekers was 12th
with
8,521 applications claimed asylum in 44 industrialized countries.10
Since the start of 2012, there are reports about significant increase in the number of
Sri Lankans who try to leave the island on boats. There is no one and only reason for
these efforts to depart; there is a mixed nature of these motives.11
The cases of
departures form Sri Lanka by sea are not rear. Earlier, such departures were common
from Negombo, which is located 40 kilometres from Colombo along the north
western coastal belt, but since 2012 there are reports about departures from other
locations.12
The country authorities (the navy and the police) have caused, were
reported, an increase of the boat interceptions in Sri Lanka’s territorial water.
2012
January – July July January-September January-November
Prevention of
approximately 700
irregular departures
(claimed by Sri
Lankan
authorities)13
Approximately 250
Sri Lankans were
detained in the
country because of
attempts of
irregular
departures14
Over 3,600 Sri
Lankans have
departed their
country in hope of
seeking asylum in
Australia15
More than 1,200
people were
arrested as they
were trying to leave
the country in
irregular manner
(on boats)16
The majority asylum seekers on the boats, who arrived to Australia, were reported to
be Tamils.17
9
IRIN (2011) a
10
UNHCR (2012) c, table 10, page 30.
11
See e.g. The Sydney Morning Herald (2012); ABC News /Australia Network News (2012),
12
See Groundviews (2012)
13
See Jakarta Globe (2012) b
14
See Jakarta Globe (2012)b
15
The Sydney Morning Herald (2012)
16
Jakarta Globe (2012) a
17
ColomboPage (2012) a,

The situation with the repatriation process is inversely proportional to the situation
with the refugees. In 2013, only 718 refugees returned to Sri Lanka through the
assisted voluntary repatriation program from India, which is supported by the
Governments of India and Sri Lanka and facilitated by UNHCR. It was a decline in
the number of refugees returning to Sri Lanka compare to the previous years, when
some 1.480 individuals returned in 2012 and 1,728 persons voluntary repatriated in
2011.18
It is quite difficult to understand the reasons behind 51% fall in returns from 2012.
UNHCR representative Golam Abbas said: “The decision whether or not to return
rests with each individual family. Repatriation should be voluntary and no one can be
made to return against his or her will.”19
The greater number of returnees comes from camps located in Tamil Nadu while
seven persons also returned from Malaysia, Congo-Brazaville and Morocco. As of 30
June 2013, there were 124,436 Sri Lankan refugees around the world, according to
UNHCR statistic.20
1.2 Research questions, problem formulation and research area
All these abovementioned facts tended me to think that it would be really interesting
to understand the reasons that hinder the durable solutions.21
Due to lack of time and pages limit, I chose two durable solutions – repatriation and
local integration as I believe that repatriation is one of the best solutions, of course, if
it is really voluntary. And local integration is obviously one of the possible solutions
if the refugees are living in camp already almost three decades, and already few
generations were born and grow there. I have decided to focus only on these two
durable solutions as the question of the resettlement needs, as I believe more
researches to be done. First of all the research area would be much bigger as the
resettlement is also affected by the third countries and their legal and political
systems.22
18
UNHCR (2013) b
19
UNHCR (2013) b
20
UNHCR (2013) b
21
See subchapter 6.1 of this thesis
22
See subchapter 6.1 of this thesis

That is why this thesis seeks to evaluate the real reasons behind such poor repatriation
process, despite the end of the war 5 years ago and circumstances which influence the
possibility of local integration.
In my opinion, this problem does not seem to affect the international community so
much as the main stream of refugees has fled to the neighbour country – India.23
That
is why this problem has more local character; I would define it, as the problem of two
nations: Indian and Sri Lankan. Underlining all aforementioned I have decided that
the most suitable research questions of my thesis will be the following:
What are the main obstacles to durable solutions?
Can repatriation and local integration be really durable solutions in the case of
Tamil Refugees in India?
My primary motivations to write this thesis about repatriation process and local
integration of Tamil refugees are largely grounded in my personal interest. While
thinking about the selection of the theme for my thesis, I read some articles in news-
papers as well as refugee journals, but I found that there are a lot of researches made
on the subject of the conflicts, refugees and IDPs issues in Africa (which are, no
doubt, critical nowadays and have extensive international exposure). But, I believe,
that Tamil refugees in India are unpardonably forgotten. Although there are some
attempts of the UN towards Sri Lanka but they do not concern the improvement of the
repatriation process or possibilities of local integration on the territory of India but
rather an international investigation into allegations of war crimes in the final phases
of the civil war in 2009.24
I do not argue that the question of the violation of human
rights in Sri Lanka during the war and post-war periods is less important but my
intention is to analyse the situation of the refugees’ life and at the end of this project
find the answer on my research questions
Normatively speaking, one can argue that the primary responsibility for the refugees’
protection lies on the UNHCR. So I will check UNHCR’s activity in India and Sri
Lanka as well as the other NGOs, but we should not forget that the central
government of the country has to accept these activities on their territory which is
23
For more information check section 1.2 of this thesis “Background to the study”.
24
Cumming-Bruce, N., (2014), HRW (2014)

under supreme, independent authority of every country, in other words, each country
has its sovereignty.25
So the main accent will be made on the activities of Indian and Sri Lankan
governments towards refugees’ issue as well as the political decisions which have the
huge impact on the repatriation process as well as local integration, as it is the main
task of my research questions.
Before starting my research and analysis, I would like to present a short historical and
political note about preconditions which had provoked the conflict between the Tamil
and Sinhalese communities in Sri Lanka which took their origin at the beginning of
the XX century and as result were reasons for the further massive flood of the
refugees as well as the repatriation process.
CHAPTER TWO: Historical and political background of the crisis
25
Soveregnty – Encyclopædia Britannica.Encyclopædia Britannica Online.Encyclopædia Britannica
Inc., 2014. Web 25 May, 2014, http://global.britannica.com/EBchecked/topic/557065/sovereignty

2.1 Origin of the conflict
The Sri Lankan population is divided as follows: Sinhalese 73.8%, Sri Lankan
Moors 7.2%, Indian Tamil 4.6%, Sri Lankan Tamil (Indians) 3.9%, other
0.5%, unspecified 10% (2001 census provisional data)26
Here I need to
explain who are Moors, Indian Tamil and Sri Lankan Tamil. Moors - nomadic
people of the northern shores of Africa, originally the inhabitants of Mauretania. They
were chiefly of Berber and Arab stock. In the 8th century the Moors were converted
to Islam and became Muslims.27
The Sri Lankan Tamils are those who migrated to the
northern and north-eastern parts of Sri Lanka in the 10th century and the Sri Lankan
Tamils (Indians) are estate labourers who in 1971 numbered 9.3 per cent of the
population28
. Religious diversity of this country, namely, Buddhist (official
religion) 69.1%, Muslim 7.6%, Hindu 7.1%, Christian 6.2%, unspecified 10%
(2001 census provisional data)29
, has not also contributed to the peaceful life
of the island population as you can see later in this thesis.
The origin of this conflict is in the distant past, mainly, at the beginning of the 20th
century, when the island was under British control and was known as Ceylon. That
time, Ponnambalam Arunachalam, a Tamil was appointed to represent the Sinhalese
and Tamils in the national legislative council. Under his leadership, the main
Sinhalese and Tamil political organisations were united to form the Ceylon National
Congress in 1919; their main aim was to force the colonial rulers for more significant
constitutional reforms. But their plans were not fulfilled as the British Governor,
William Manning, insisted on the “communal representation” and creation of the
Colombo town seat (1920) which was occupied by the Tamils or the Sinhalese from
time to time. This situation intensified already existing little tension amongst Sri
Lanka’s two largest ethnic groups: the Sinhalese and the Tamils.30
In 1936, two members of the Lanka Sama Samaja Party (LSSP), elected to the State
Council, demanded that Sinhala and Tamil become the official languages instead of
English. But in 1944, J.R. Jayawardene, recommended the State Council to replace
English with Sinhala, as the official language.31
26
Central Intelligence Agency (2014)
27
The Columbia Encyclopedia, 6th ed. (2013) Moors; Aboobacker Rameez (2013)
28
Weiner M., (1993), p. 1738
29
Central Intelligence Agency (2014)
30
Sabaratnam, T., (2010)
31
Buckingham, J. (2007) p 363

In 1948 when Sri Lanka obtained the independence from the British Rulers, the
Ceylon Parliament passed another controversial bill – the Ceylon Citizenship Act,
which made the obtaining of the citizenship to Indian Tamil ethnic minority in the
country almost impossible.32
The last attempt which destroyed the Tamil minority patience was the Sinhala Only
Act, passed by Prime Minister S.W.R.D. Bandaranaike in 1956. This Act made
Sinhala – the only official language of the country and at the same time it was viewed
by the Tamil speaking minority (Sri Lankan Tamils, Indian Tamils and Sri Lankan
Moors) as an act of the linguistic, cultural and economic discrimination as they could
not work in the Ceylon Civil Services and other public services as they were not
fluent in Sinhala.33
All these abovementioned events in national politics of Sri Lanka provoked the Tamil
minority to action which developed into the 1956 Gal Oyl riots and the 1958
widespread riots, which were the first signs of the future civil war.34
The next step of the Sri Lankan government to limit the rights of the Tamil minority
of the island was the Policy of Standardization – an act of institutional racism (1970s),
as its main aim was to redress the imbalance in university admissions where the
majority belonged to the Tamils whereas the Sinhalese were underrepresented. 35
Few
more steps on the way of the official discrimination against the Tamils in Sri Lanka
were a seizure of traditional Tamil areas by Sinhalese peasants; a ban of Tamil-
language media and the priority to Buddhism – the main religion of Sinhalese.36
2.2 Liberation Tigers of Tamil Eelam (LTTE)
In 1960s, Anthon “Bala” Balasingham, a Tamil man from Sri Lanka, a sub-editor on
Virakesari, the Colombo Tamil newspaper and later a translator for the British High
Commission, started to participate in the separatist movement. Due to family
problems he migrated to England and became the voice, political strategist and
negotiator of Liberation Tigers of Tamil Eelam (LTTE).37
If the sophisticated
Balasingham was the public persona of LTTE, for many years the driving force
behind the group was his relationship with its reclusive founder and leader Vellupilai
32
Shastri, A., (1999 Rajan, (1992), 65) p.65
33
Nail DeVotta (2003), p.123; Horowitz, Donald L. (2000), p.342
34
Wickramasinghe, N (2006) p.272-273
35
McDowell, C. (2005), Volume II: p.535
36
Pereira, R.L. (1983)
37
Gardiner., B., (2007); “History of Anthon Balasingham: Voice of Nationa” (2011)

Prabhakaran, who in early 1960s had been involved in the separatist activities among
other Tamil youth.38
In 1972 the Tamil New Tigers (TNT) was formed by Prabhakaran and Chetti
Thanabalasingam. The ideology of group was based on the 1st
Millennium Chola
Empire where the tiger was its emblem.39
In 1975 Eelam Revolutionary Organisation
of Student (EROS) was founded in London and it was the backbone of the Eelamist
movement in the diaspora although this organisation derived its strength from the
student group in Madras – the General Union of Eelam Students (GUES)40
. In 1976
the main Tamil Party, the Federal Party, united the other Tamil groups under the
Tamil United Liberation Front (TULF). They sought an independent Tamil State-
Eelam for the northern and eastern parts of Sri Lanka based on the right of self-
determination, which was stated in the Vaddukkodei (Vattukottai) resolution of
1976.41
Apart the political fight, the politicised Tamil youth in the north and east started to
form military groups which were developed independently from the Colombo Tamil
leadership. One of such groups which we mentioned above was TNT which changed
its name to the Liberation Tigers of Tamil Eelam (LTTE) in 1976 and began its armed
struggle against government in 198342
which, in its turn, led to civil war during 1983-
2009.43
2.3 Milestones of the Civil War
As I mentioned in the previous sub-chapter, the fight of LTTE against Sri Lankan
government led to the armed conflict which lasted 26 years. This war was divided into
phases of high intensity:
 Eelam War I: June 1983-July 1987;
 Eelam War II: June 1990-January 1995;
 Eelam War III: April 1995-February 2002;
 Eelam War IV: July 2006-May 2009.
38
“Anthon Balasingham: Negotiator for the Tamil Tigers” (2006),
39
Gunaratna, R., (1997)
40
Wilson, A., Jeyaratnam (2011) p.517; Kingsbury, D. (2012)
41
Boxall, S., (2008) p. 734; Vaddukoddai Resolution (1976)
42
Boxall, S., (2008) Op. cit. p.734 p. 734
43
Miriam George (2013) p.175,

It was interrupted by different efforts to find a negotiated solution, which failed
altogether.44
I will mention only main milestones of this war which, in my view, are
related to the topic of my thesis.
 Eelam War I (1983-1987)
So “First Eelam War” started in 1983 when 13 soldiers were killed in LTTE ambush,
and it led to the death of several hundred Tamils during anti-Tamil riots. In 1987
LTTE was pushed back into the northern city Jaffna by government forces. New
councils were created for Tamil areas in north and east according to the government’s
accords as well as the Indian Peace-Keeping Forces were deployed in Sri Lanka
according to the agreement with India, which I will describe more detailed in my next
sub-chapter as it had some influence on the nowadays relations between Sri Lanka
and India.45
 Eelam War II (1990-1995)
In 1993 President Premadasa was killed in LTTE bomb attack. And the new President
– Kumaratunga came to power in 1994 and he pledged to end war. Government
started peace talks with LTTE.46
 Eelam War III (1995-2002)
The third Eelam War started in 1995 with the naval craft which was sunk by rebels.
During 1995-2002 war intensified across north and east. That time Sri Lanka’s holiest
Buddhist site was bombed by Tamil Tigers as well as President Kumaratunga was
wounded in a bomb attack. Finally in 2002 a Norwegian-mediated ceasefire was
signed by government and Tamil Tigers
The biggest change was that Sri Lankan government lifted a ban on Tamil Tigers and
rebels, in their turn, dropped demand for separate state. But in 2003 Tigers pulled out
of talks although cease-fire held. Next year tigers regain their control of the east. The
same year the Indian Ocean tsunami hits Sri Lanka, killing more than 30,000 people
and leaving even more homeless and disrupts the strength of LTTE. Next year Tigers
were suspected of Foreign Minister assassination and state of emergency was
imposed. The same year Prime Minister, Mahinda Rajapaksa, became a president
44
Destradi, S., (2010) p.8
45
Sri Lanka Profile (2013); See next sub-chapter for more information about Indian involvement.
46
Sri Lanka Profile (2013)

after elections. Most of the Tamils in areas controlled by the Tamil Tigers did not
vote.47
 Eelam War IV (July 2006-May 2009)
By July, 2006 the cease-fire agreement collapsed which was followed by new attacks
and at the same time peace talk failed in Geneva. 48
At the last stage of the war in 2009 government captured the city of Kilinochchi, held
by the Tamil Tigers as their administrative headquarters since 1995. This event was
called an unparalleled victory by President Mahinda Rajapakse, and he urged the
rebels to surrender. Thousands of civilians were trapped in the battle zone between the
Sri Lanka armed forces and the retreating LTTE rebels who used them as human
shield and at the same time they were subjected to “intentional shelling” by the
government forces.49
Government armed forces had confined the LTTE to a small
jungle area (Mullaithivu district), this space continued to shrink up until the LTTE’s
military were defeated and their leader, Velupillai Prabhakaran, was killed.50
2.4 Indian involvement and Rajiv Gandhi’s assassination
India is Sri Lanka’s closest neighbour with historical but sometimes complicated
relationships. The geo-strategic position of these two countries has played a huge role
in the bilateral relations. India saw and sees Sri Lanka’s strategic position and foreign
interests as a major security consideration.51
So it is no surprise that in 1980s India
became involved in the Sri Lanka’s conflict for a number of reasons. Moreover the
Indian central government under Indira Gandhi and Tamil Nadu state government
(where ethnic kinship led to strong support for independence for Sri Lankan Tamils)
have supported both sides of this conflict in different ways. That is why at the
beginning (early 1980s) the Tamil rebel groups had been supported by both Indian
central and state governments by providing them with military assistance and training
and this all took place on the Indian territory.52
But it lasted not so long as Indian
Prime Minister Indira Gandhi was assassinated in October, 1984, and her son Rajiv
Gandhi began to follow a more neutral position in the conflict and stopped to support
47
Sri Lanka Profile (2013)
48
Fuller, T., (2009), Sri Lanka Profile (2013)
49
International Crisis Group (ICG) (2010), p.191.
50
Nelson, D., (2009)
51
Boxall, S., (2008) Op.cit. p. 736
52
Dixit, Jyotindra Nath (2003), p. 53; Dos Santos, Anne Noronha (2007),

the Tamil rebel groups, vice versa, India tried on a conflict-management role and was
repeatedly a mediator between the conflict parties in the 1980s.53
But the escalation of
violence in Sri Lanka and the failed mediation efforts incited India to intervene in Sri
Lanka by the airlifting supplies to the Jaffna Peninsula (North of the Island) to break
the Sri Lanka government blockade on that territory. This event persuaded Sri Lanka
to accept Indian conflict-management efforts and as a result of secret Indian and Sri
Lankan governments’ negotiations, in 1987 the Indo-Sri Lanka Agreement (ISLA)
was signed by both sides. According to this agreement, Indian Peace Keeping Force
(IPKF) was deployed in the North and the East of the country to supervise the
ceasefire and disarm the LTTE. But it became the darkest period of Indian regional
politics as the LTTE started fighting the IPKF.54
After three years, India withdrew its
troops as they were not trained to fight for a guerrilla war.55
One sadder event which had changed Indian policy towards Sri Lanka was the
assassination of the former Prime Minister Rajiv Gandhi by a suicide bomber in May
in Tamil Nadu during his hustings. LTTE was classified as the terrorist organisation
in India and its leader, Prabhakaran, became most wanted man in India as the Indian
Supreme Court attributed the assassination of Rajiv Gandhi to the LTTE. As a result,
all abovementioned events have prevented further diplomatic involvement of India as
a mediator because it became impossible for New Delhi to have any direct contact
with the Tamil Tigers. 56
CHAPTER THREE: Sri Lankan government activities towards refugees’
repatriation as the evidence of security issue.
3.1 Post-war situation and government key decisions
53
Rao, P. Venkateshwar (1988), p.425.
54
Bouffard, S., and Carment, D., (2006), p.159
55
Rajagopalan, Rajesh (2008),
56
Devotta, Neil (2010), p.41

First of all in the post-war situation the executive powers of the President were
strengthened in September 2010 by means of the Parliament’s approval of the 18th
amendment to the Constitution, according to which:
 the President can serve any number of terms (previously it was the maximum
of two six-year terms)
 the President gets control over appointment of key positions such as Chief
Justice, Attorney General and Inspector General of Police as well as the
Commissioners of all the formerly independent Commissions, including the
Human Rights Commission, the National Police Commission and the Public
Service Commission.57
According to the civil society actors’ opinion, this 18th
amendment does not present
democratic values.58
In August 2011, President Rajapakse made a decision not to extend the state of
emergency upon of its expiry in September 2011, which he announced to
Parliament.59
Sri Lanka civil society welcomed such announcement.60
But the reality was that a
number of widely used Emergency Regulations were to remain in force, in the form
of regulations under the Prevention of Terrorism Act (PTA) and it was met with
concern as the new measures entered into force before the expiration of the state of
emergency.61
All these measures were related to detention (possibility to certain
persons, ‘surrendees’, for up to 18 months without charge), moreover they were used
as a shield for government officials, who may have committed wrongful acts such as
torture, from prosecution. Here, a “surrendee” is defined under Emergency
Regulation (ER) 2005 regulation 22, as amended by Regulation No. 1462/8, 12
September2006) as any person who surrenders to the authorities in connection with a
wide range of offences, including firearms and explosives offences, offences under
the PTA, certain offences under the Penal Code, or “under any emergency
regulation”.62
57
The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978
58
Adverse Impact of the 18th Amendment on Governance, (2010), See also CPA (2010) a
59
The state of emergency had to be extended every month by the Parliament. After the President’s
announcement, the state of emergency was allowed to lapse by not extending it the following month.
The state of emergency had been in place for successive periods over the last four decades.
60
See e.g. CPA (2011) c, (2011); NPC (2011) b.
61
See e.g. CPA (2011) b; Perera, J. (2011)
62
Note that the Emergency Regulations lapsed on 31 August 2011

On 17 March 2011 there were elections for local government, where the President’s
party – the United People’s Freedom Alliance (UNPFA)63
– gained control of 270 out
of 322 local authorities, with the Tamil National Alliance (TNA) winning control only
in 32 local authorities.64
There were reports of the inter- and intra-party violence and
violations of electoral law during these elections.65
After the end of the armed conflict in April 2009, the Rehabilitation and Prison
Reform Ministry, under the overall guidance and control of the Ministry of Defence,
has implemented the “rehabilitation” programme which had effect on the former
LTTE combatants and LTTE members and many others suspected of having links
with the LTTE. This programme included the security and intelligence screening as
well as counselling and vocational and language training. More than 11,000
individuals (mostly former combatants but also drivers, cooks and other aids) have
gone through this process.66
In June 2012, the Ministry of Defence and Urban
Development published on its website that out of 11,600 persons, 698 “ex-LTTE
cadre” were still undergoing rehabilitation.67
There were a lot of questions about some elements of the rehabilitation process such
as:
1) the detention
2) the involuntariness of participation
3) the absence of clear and transparent legal framework with judicial or
administrative review and related due process safeguards.68
The last point was about persons, who depending on the context, are referred to as
surrendees,69
separatees (a person identified by the Sri Lanka security forces as
formerly associated with LTTE but not formally charged) and rehabilitees (a person
63
Note that in two locations where the UNFPA won it was contesting under the name National
Congress [NC].
64
See e.g. for outcome July elections: BBC (2011) c; Note that in two locations where the TNA won it
was contesting under the name Tamil United Liberation Front [TULF].
65
See e.g. BBC (2011) b; The Sunday Times (2011):The Campaign for Free and Fair Elections
(CaFFE) reported 86 violations of elections law and 5 reported cases of intimidation and assault, Daily
Mirror (2012): Elections not free and fair, CaFFE; The Nation (2011), Election-related violence
reaches a new high. See also Centre for Policy Alternatives, CPA Statement on Local Government
Elections
66
Daily Mirror,(2012)
67
Ministry of Defence and Urban Development, (2012); The Sunday Observer, Sriyananda, Sh (2012)
68
International Commission of Jurists, (2010), See also HRW (2011) b, “Over 1,000 people who
renounced support for the LTTE remain detained in so-called “rehabilitation” centers. And several
thousand suspected LTTE members are being held under the lapsed emergency regulations. They have
not been tried, despite being held for more than two years,”
69
See above, footnote 39

undergoing rehabilitation in a rehabilitation centre (for a period of maximum 24
months)), although these terms are often used interchangeably.
The Defence Ministry data show that since the time when Rajapaksa became a
President, the Sri Lankan Arm (SLA) has tripled in size. The victory of the Army over
the LTTE is attributed to this increase by many observers.70
The years after conflict
did not bring expected significant demobilization and even no such plans have been
put forward.71
Vice versa, SLA soldiers were involved in such branches of civilian life
as construction, tourism and trade.72
Moreover the Ministry of Defence supervises the Department of Immigration and
civilian Police Service as well as the NGO Secretariat which regulates the registration
of NGOs. This issue poses the question about restrictions on the ability of these
organisations to fulfil their tasks.73
3.1.1 Lessons Learned and Reconciliation Commission (LLRC) followed
by Action Plan.
In 2010 there was not enough information about the final stage of the conflict and its
impact on post-conflict reconciliation, except the publication of UNHCR’s 2010
Eligibility Guidelines,74
but following years it has changed a lot, much has been
published and relevant development has taken place. First of all, according to the
President Rajapakse appointment, government established the “Lesson Learnt and
Reconciliation Commission” (LLRC), which duty was to report on lessons to be
learnt from the event which took place between February 2002 and May 2009.
Amnesty International, in its turn, described this mechanism as “seriously flawed and
far short of international standards on national commissions of inquiry” 75
, especially
because of the absence of any mechanism ofenforcement or implementation.76
70
The Economist (2010),
71
See e.g. IDMC (2012), This report indicates that as of September 2012 the ratio of military personnel
to civilians is estimated to be 1:5 in Mullaitivu and 1:10 in Kilinochchi.
72
On the military’s engagement in farming and other economic activities in the north, see ICG (2012)
d, p. 22-23. See also the Economist (2011)
73
.Rohan Edrisinha of the University of Colombo Law Faculty has analysed the operating environment
for NGOs in Sri Lanka in 2010, ahead of the introduction of legislation that facilitates greater
governmental control of NGOs: see IJNfPL (2010) Sri Lanka; ICG (2012) c, Regarding expansion of
Ministry of Defence into Urban Development, see Daily FT (Sri Lanka) (2011).
74
UNHCR (2010)
75
See e.g. IRIN (2011), AI (2011) b,
76
ICG (2011) a,

In March 2011 the mandate and the functioning of the LLRC were recognised, not in
accordance with international standards in Report of the UN Secretary General’s
Panel of Expert on Accountability in Sri Lanka. It was concluded by the Panel that the
process was not victim-centered, independence as well as impartiality were lacking
and protection of witnesses and victims was inadequate.77
Despite the UN Report, the LLRC’s mandate was extended twice.78
In 2011 the report
prepared by the LLCR was presented to the President and later passed on to the
Parliament and was published on the government website on 16 December 2011.79
During LLCR’s investigations there were recorded 1,000 oral testimonies and 5,000
written testimonies, held 52 public hearings and visited 40 villages where the armed
conflict took place. The public release of the Commission’s final report was positively
treated by Sri Lanka civil society as well as international observes as a confirmation
of huge civilian casualties and attempts towards the principles of good governance
and political solution in response to Tamil grievance.80
But at the same time, they
admitted that the Commission’s Data on humanitarian law and accountability for
violations of human rights during the last stage of the armed conflict to be
insufficient.81
As a result of all these discrepancies, the resolution on promoting reconciliation and
accountability in Sri Lanka was adopted by the UN Human Rights Council (UNHRC)
in March 2012. Moreover it was mentioned that the LLRC report did not show in
adequately all serious violations of international law and as result it was suggested to
the Sri Lankan government to “take all necessary steps to implement the
recommendations” of the LLRC report as well as to take additional steps towards
justice, accountability and reconciliation.82
Furthermore the limited access of the population of Sri Lanka to the LLRC’s findings
was caused by no official Tamil or Sinhala translation.83
77
UNSG (2011) see in particular paragraphs 434 – 437
78
LLRC, Lesson Learnt and Reconciliation Commission. The Mandate.
79
BBC (2011) a. LLRC (2011)
80
AI (2011) a; HRW (2011) a; ICG (2011) b; CPA (2012) e; Perera, J. (2011), NPC (2011) a
81
The Tamil National Alliance, the third-largest political party in the Sri Lankan Parliament and the
largest Tamil party, stated that the LLRC Report “categorically fails to effectively and meaningfully
deal with issues of accountability”. TNA (2011)
82
The Resolution was adopted by a vote of 24 in favour, 15 against and 8 abstentions. The Human
Rights Council further requested the Government to present a comprehensive action plan detailing the
steps it has taken and will take to implementing the LLRC recommendations and to address alleged
violations of international law. See for details: HRC(2010)
83
See Perera, J. (2011); see also Dharmasinghe, G., (2012)

In response to the UNHCR, the Sri Lankan government developed a National Action
Plan which was directed towards implementation of the LLCR recommendations
which contains 91 detailed recommendations.84
Many considered this Plan as a
progressive step in the process of post conflict reconciliation.85
But at the same time it
was concerned that the Action Plan addressed not all LLCR recommendations and
moreover its implementation took place without any involvement of civil society and
local communities.86
According to the ICG report in 2013, this action plan “ignored or
rejected most of the LLRC’s key proposals on governance and impunity for human
rights violations, and watered down even its weak recommendations to investigate a
small number of alleged war crimes. More than six months after its publication, the
promises of the action plan remain largely unfulfilled”87
Moreover the Action Plan has
been widely criticised by the Tamil National Alliance (TNA) – the largest Tamil
Party, because of the absence of parliamentary consultations during its formulation.88
3.2 Process of the repatriation of Tamil refugees and failed asylum seekers
The UNHCR is facilitated voluntary repatriation programme for all returnees. Upon
arrival, all returnees undergo a questioning session by Immigration Officials which
lasts one-two hours, later State Intelligence Service (SIS) conducts security interviews
which can take from 30 minutes to five hours. UNHCR waits for the returnee out of
the interview room as UNHCR is not allowed to stay there during interview process.
Only then, individuals have been permitted to proceed from the security interviews to
their destinations.89
Return and reintegration assistance (support with onward transportation from the
airport to home areas, a reintegration grant, and on-going protection monitoring post-
return) are provided by UNHCR. According to the UNHCR post-return monitoring
data in 2011, 75% of refugees – returnees, upon arrival in the village of destination,
were contacted at their home by either a military (38%) or police officer (43% ). The
reason for these contacts was to register further. 26% of these returnees were again
84
Government of Sri Lanka (2012),
85
See e.g.: CPA (2012) f; Perera, J. (2012); NPC (2012) c,
86
See: Department of Census and Statistics (2011) p. 48.
87
ICG (2013) f
88
Colombo Page (2012)
89
UNHCR (2012) b

visited at home for subsequent interviews, with a handful receiving a number of
additional visits by the police or military.90
Some Sri Lankan former asylum-seekers, whose cases had been rejected in last
instance and those who had abandoned their asylum claims, have returned under the
“assisted voluntary return and reintegration” (AVRR) programme, which is guided by
International organisation for Migration (IOM). This program is primarily intended
for stranded migrants and works in a number of countries.91
According to some sources, there are cases of former Sri Lankan (in particular Tamil)
asylum-seekers who were allegedly detained and ill-treated or tortured after having
been forcibly returned to Sri Lanka upon rejection of their asylum claims or who
voluntarily returned to Sri Lanka.92
There is no monitoring system to fix the treatment
of Sri Lankans who were forcibly returned to Sri Lanka.
3.3 Human rights situation in Sri Lanka
Although the Sri Lankan government claimed the implementation of its Lessons
Learned and Reconciliation Commission recommendations, there had been no
significant, positive progress in Sri Lanka on the most critical issues. The information
which proves all abovementioned facts was recorded and summarized by US
Department of State93
as well as many NGOs which are working in Sri Lanka such as:
 International Crisis Group (ICG)94
 Asian Legal Resource Center (ALRC)95
 Human Rights Watch (HRW)96
 Sri Lanka Campaign for Peace and Justice97
First of all, there were no reliable investigations conducted by government into the
allegations of war crimes. Moreover, human rights violations or disappearances
continue even now. 98
One of the reports presents the facts that three years after the
end of the conflict between Sri Lankan government and the LTTE “the use of torture
and ill-treatment remains widespread and routine” with the general impunity for the
90
UNHCR (2012) b
91
International Organisation for Migration
92
See. Subchapter 3.3 of this thesis; HRW (2013), AI (2011) a
93
United States Department of State (2013)
94
ICG (2013) f
95
AHRC (2012)
96
HRW (2013)
97
Sivathasan, N., (2013)
98
ICG (2013) f

authors of tortures.99
Moreover the security forces around the country use torture for
extracting information, obtaining false confessions to close criminal cases, extorting
money or favour. In addition, the situation is even more dangerous for those who are
suspected to have some kind of the connection with the LTTE. They can be simply
secretly arrested and detained for an unlimited period of time and they are denied any
access to a lawyer or their family members. The use of cruel and degrading treatment
is one of the prisons’ mainstream practices. Victims and witnesses face the
intimidation and reprisals, moreover many of them have disappeared or have been
killed after being kidnapped.100
Among other human rights violations the most common are the cases of rape and
other forms of sexual abuse against the suspected members or supporters of the LTTE
which were used by Sri Lankan security forces as a form of torture. 75 cases of rape
against women and men (31 of men, 41 of women and 3 of boys under age 18) in
state custody were recorded between 2006 and 2012. All this sexual violence was
perpetrated by members of the state security forces.101
Report on Human Rights Practices for 2013, Sri Lanka, prepared by US Department
of State, presents the facts of the crimes against humanity102
which are defined by the
Rome Statute of the International Criminal Court Explanatory Memorandum, as "
particularly odious offences in that they constitute a serious attack on human dignity
or grave humiliation or a degradation of human beings."103
Among the crimes against
humanity which took place in Sri Lanka were involuntary disappearances as well as a
lack of accountability for thousands who disappeared in previous years.104
Other serious human rights problems included attacks on and harassment of civil
society activists, persons viewed as LTTE sympathizers, and journalists by persons
allegedly tied to the government, creating an environment of fear and self-censorship;
unlawful killings by security forces and government-allied paramilitary groups, often
in predominantly Tamil areas; torture and abuse of detainees by police and security
forces; poor prison conditions; and arbitrary arrest and detention by authorities.
Lengthy pre-trial detention was a problem. Denial of fair public trial remained a
problem, and during the year there were coordinated moves by the government to
99
AHRC (2012)
100
AHRC (2012)
101
HRW (2013)
102
ICC, What are crimes against humanity?
103
UN (1998),
104
United States Department of State (2013)

undermine the independence of the judiciary ….. There were restrictions on freedom
of speech, press, assembly, association, and movement. While citizens generally were
able to travel almost anywhere in the country, there continued to be police and
military checkpoints in the north, and de facto high-security zones and other areas
remained off limits to citizens… Discrimination against persons with disabilities and
against the ethnic Tamil minority continued, and a disproportionate number of victims
of human rights violations were Tamils….105
The report released by Sri Lanka Campaign for Peace and Justice, presents the facts
that the rights of all prisoners in Sri Lanka are continuously violated as well.
Nevertheless the most violated group of prisoners, who were tortured, have been and
still are Tamil. As from the beginning of the civil war, thousands of Tamils who were
suspected of links with the LTTE have been arrested and detained in prisons,
detention camps and police custody.
There were several cases of Sinhalese people arrested for the same reasons and some
of them were abused and ill-treated.106
In the political life of Sri Lanka there are such cases as regular kidnapping and killing
of the political opponents which were noted by the ICG as well as that “Tamil identity
and political and economic power in the north and east are under unprecedented
threat”107
3.4 Government appropriation of land as “unwanting” politics
towards Tamil people
In 2013 a watchdog organisation Freedom House wrote in its Freedom in the World
Report about the anxiety of observers
“... that government appropriation of land in the north and east as part of economic
development projects or ‘high security zones’ has impinged on freedom of movement
and the ability of local people to return to their property, and that the land will be
allotted to southerners or on politically motivated grounds. The military has expanded
its economic activities in the north and east, running shops and growing agricultural
produce for sale in the south, while local business people are pushed out of the
market”108
105
United States Department of State (2013) pp.1-2
106
Sivathasan, N., (2013)
107
ICG (2013) f
108
Freedom House (2013)

In March 2013 Peoples’ Alliance for Right to Land (PARL) Sri Lanka109
made a
statement110
on the lack of fulfilment of the final recommendations of the Lesson
Learned and Reconciliation Commission (LLRC) on land issues in the context of
return and resettlement based on the case-studies from North and East. All these case-
studies presented the displacement and loss of land of thousands of Tamils, which had
an effect on their livelihood. Although the accent has been put on the displaced
Tamils, all these issues also directly relate to Tamil refugees as well, as hundred of
them had to leave their land and flee to neighbouring India or settle overseas in search
of better life. With the end of war in May 2009 many of landowners have begun to
return and are seeking ownership of their property. Although Sri Lankan government
states that they had returned most of the property held by military during the war
some areas have not owing to security reasons.111
As a conclusion, PARL demanded the immediate action to protect the rights of
marginalised and vulnerable communities located in the North and East as well as a
speedy implementation of all LLRC recommendations towards ensuring ‘justice,
equity, accountability and reconciliation for all Sri Lankans’.
The Land Grabs problem in Sri Lanka became a big issue and was heard in the world
after London’s presentation of the documentary “This Land belongs to the Army”,
made by Indian film maker Maga Tamizh Prabhagara. The main thought which was
shown in the movie is that the procurement of Tamil Land by the Sri Lankan
government is the part of a “structural genocide”. Moreover, Prabhagaran, himself
was detained by Sri Lankan security forces while visiting the Tamil homeland in the
North-East areas, and even was deported by Colombo. After arriving to London the
British police held him and interrogated for over 3 hours, the main cross-examination
related to the issue of LTTE and protests held by Tamil diaspora.112
Here I need to explain what is the “structural genocide”. This term was coined by S.P.
Udayakumar and used in his essay 1995 for future “the Futures of the Poor” to
describe a global assault by the privileged upon the poor. His essay included the
chapter “Poverty is Genocide”, that merits extended quotation:
109
PARL Sri Lanka – a network of civil society organisations and individuals campaigning on issues
of land-grabs and landlessness across Sri Lanka, See: PARL
110
PARL (2013)
111
Tamils Seek Justicein Courts Against Sri Lanka Military’s Forced Land Grab, News of the
Transtamils, May 16th
, 2013
112
“ Land Grabs parts of structural genocide “ – interview with Tamnil Nadu Journalist Maga Tamizh
Prabhakaran, Tamil Guardian, 10 February, 2014 http://www.tamilguardian.com/article.asp?
articleid=9912

“Genocide means not just massive killing (which we can call direct or physical
genocide) but also includes calculated attacks on and constant efforts at undermining
the basic human dignity and life-support systems of a particular group of people
(which may be described as the indirect or structural genocide).”113
In Tamil issue, the mass atrocities in Sri Lanka form “a larger pattern aimed at
creating conditions of permanent subjugation of the Tamil people” and it was
mentioned by the Leader of the Tamil National People’s Front while speaking at the
United Nations Human Rights Council. In its turn, Gajendrakumar Ponnambalam,
speaking on behalf of Collectif des Femmes Africaines du Hainaut at the oral update
of the OHCHR inquiry into Sri Lanka, labelling the ongoing subjugation of Tamils a
“structural genocide,” said
“Most of the incidents referred to by the oral update are part of a larger pattern aimed
at creating the conditions of permanent subjugation of the Tamil people as a whole - a
process of de-Tamilsation which we interpret as the structural genocide of the Tamil
Nation in Sri Lanka. An honest and forthright appreciation of the problems that face
the Tamil people is fundamental and we call upon the OHCHR to conduct the inquiry
in this spirit.”114
CHAPTER FOUR: Indian home and foreign policy towards refugee
problems
4.1 International norms for the treatment of refugees and refugee protection
regime in India.
India is the host-country to one of the biggest refugee settlement in the world. As it is
stated in the Country Report on Human Rights Practices for 2013 prepared by U.S.
State Department, there are more than 272,000 refugees in the country, including
113
Jones, A., (ed) (2012) p.136
114
Tamil Guardian (2014)

150,000 Tibetans and more than 68,000 Sri Lankans in 112 refugee camps and 32,000
outside the camps.115
India has always dealt with the issues of “refugees” on a bilateral basis, although all
abovementioned facts as well as historical events show that India has always been the
home for a large variety and number of refugees. In this chapter I will present the
facts that a “refugee regime” has been observed by India, is generally conformed to
the international instruments on this subject but at the same time a legal shape is not
given to the adopted practices in the form of a separate statue.116
According to the United Nations 1951 Convention Relating to the Status of Refugees
(UN 1951 Refugee Convention), term “refugee” defines as a person who “owing to a
well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country”.117
South Asian states including India, are not signatories
of the UN 1951 Refugee Convention as well as the Protocol Relating to the Status of
Refugees 1967 (1967 Protocol). India claims that the 1951 Convention cannot be
effective in the South Asian region as it was made for European needs after World
War II and it has Euro-centric character (which is true for convention as such, but not
the 1967 protocol attached to it). Moreover India states that it has always protected
refugees even without being party to the UN 1951 Convention.118
In addition to abovementioned, in spite of the large number of refugees who are
seeking the protection on the territory of India, Indian law does not have any special
provision for refugees. In the reference to any kind of aliens is used the term
“foreigner” according to the Indian law. Refugees are no doubt “foreigners” but it
means that tourists, migrants and refugees are included in this broad category.119
However, although it would be a case to separate “refugees category” from the rest of
the foreigners, the current situation in India is that they have to deal with the existing
Indian laws, both general and special, which are applicable to all foreigners because
of the absence of the specific law towards refugees. So it means that the Evidence
Act, The Criminal Procedure Code, The Indian Penal Code and all other existing
115
See more: U.S. Report 2013.
116
Ananthachari, T., (2001), V. According “Refugee Status”
117
United Nations 1951 Convention
118
Sengupta, I., (2008)
119
Thames, H. Knox. (1999) p. 20

Indian laws apply to the refugees too. According to all these reasons, cases for refugee
“status” are considered on a case-by-case basis. 120
Although the described image of the refugees’ protection according to the Indian law
is not looking so bright, India signed a number of the documents (namely, United
Nations and World Conventions) on Human Rights, refugees and related matters
which obliged India towards refugees’ issue. In 1995 India became a member of the
Executive Committee of the High Commissioner’s Programme (EXCOM).121
Furthermore, India voted in favour of the Universal Declaration of Human Rights
(UDHR), where it is stated the rights for all persons, citizens and non-citizens in the
same manner, as well as the UN Declaration of Territorial Asylum in 1967.122
Beside that India ratified:
two Covenants (1976):
on Civil and Political Rights (ICCPR),
on Economic, Social and Cultural Rights (ICESCR) ,
the UN Convention on the Rights of the Child (CRC) (1992),
the Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW) (1993)123
In other words, India is, normatively speaking, obliged to treat citizens as well as
aliens on the basis of equality and non-discrimination with regard to liberty and life,
due to abovementioned human rights conventions signed by India.124
Let us try to understand the most important rights which are relevant towards refugees
as well as the Indian citizens, under the abovementioned Conventions.
According to the UDHR, Articles 13, 14 and 15 guarantee: “Right to Freedom of
Movement”, “Right to Seek and Enjoy Asylum” and ‘Right to Nationality.’125
At the
same time Articles 12 and 13 of ICCPR deal with “Freedom to leave any country
including the person’s own” and “Prohibition of expulsion of aliens except by due
process of law”.126
And in the last but not less important UN Convention in our list –
on the Rights of Child is mentioned in Article 2 A that the State must ensure the rights
120
Ananthachari, T., (2001), V. According “Refugee Status”, VII. India’s International commitment
121
The EXCOM is the organisation of the UN, which approves and supervises the material assistance
programme of UNHCR. Membership of the EXCOM indicates particular interest and greater
commitment to refugee matters. See: Bimal , N., Patel (ed.) (2008) pp.35-36,
122
Year Book of the United Nations 1948-49 p. 535
123
UNHCR India, Fact sheet, February 2012
124
Bimal , N., Patel (ed.) (2008) pp.,35-36
125
Universal Declaration of Human Rights (1948)
126
International Covenant on Civil and Political Rights (1976)

of “each child within its jurisdiction without discrimination of any kind”. Under
Article 3 of the same Convention states that “In all actions concerning children the
best interest of the child shall be a primary consideration”, at the same time Articles
24, 28 and 37 are directed towards: “Right to Health”, “Right to Education” and
“Juvenile Justice”.127
Moreover, India accepted the principle of non-refoulment as well as the provisions
relating to repatriation, right to compensation, granting asylum and the minimum
standard of treatment in the state of asylum, presented in the Bangkok Principles
(1966), which were devised as the guidance for the state-members of Asian-African
Legal Consultative Organisation (AALCO) about the status and treatment of
refugees.128
4.2 Indian Law for Protection of Refugees, Constitution and refoulment
policy.
As I already mentioned in the previous sub-chapter, the Indian government claims
that its policies conform to international standards, but in practice no Indian law refers
directly to refugees. That is why because of the legal vacuum around the refugees’
issue, India has addressed ad hoc129
the large-scale refugee inflows, principally,
through executive actions. As everyone can understand which means that this process
is not appropriate and is normally leaded by “political instinct” which takes its origin
in India’s diplomatic policy with the country of origin.130
As I already identified that refugees are referred as “foreigners” in Indian domestic
law then let me check the primary documents that are directed to control the treatment
of all foreigners on the territory of India, which are:
 the Registration of Foreigners Act of 1939,
 the Foreigners Act of 1946,
 the Foreigners Order of 1948.131
127
UN Convention on the Rights of the Child (1992)
128
“Final Text of the AALCO’s 1966 Bangkok Principles on Status and Treatment of Refugee”as
adopted on 24 June 2001 at the AALCO’s 40th
session, New Delhi; Davies, S., Ellen, (2008)
Legitimising Rejection: International Refugee Law in Southeast Asia. p.4
129
Ad hoc - Created or done for a particular purpose as necessary. Oxford Dictionary.
130
Acharia, B., (2004), p. 2
131
Thames, H. Knox. (1999) p.20

According to the Article 2 of the 1939 Registration of Foreigners Act, “a foreigner” is
“a person who is not a citizen of India”.132
The same definition is presented in later
adopted the Foreigners Act of 1946 (Act) and the Foreigners Order of 1948 (Order).133
In Amendment to the Indian Citizenship Act (2003) we can find the similar provision
which does not respond the need to make any distinction between refugees and their
special circumstances and other foreigners and illegal immigrants.134
According to the Act (Section 3) Indian government has the power to issue orders to
control foreigners in India in such way like: to restrict movement on the territory of
India, to limit employment opportunities and residence of foreigners as well as to
control the opportunity to associate, to mandate medical examinations in addition to
all of this, the ability to “refoule”, or “return” refugees.135
As we can see all these
restrictions contradict the Refugee Convention. 136
Let us see this restriction more detailed. So, section 3 (1, 2) of the Act, empowers the
Indian government to grant or refuse permission to enter as well as regulate the
movement of foreigners within Indian borders. And there is no matter if the foreigners
(refugees) had the strong reasons to enter the country illegally, for instance, such as
flight from persecution, but Indian government may “by order, make provision . . .
with respect to all foreigners or with respect to any particular foreigner or any
prescribed class or description of foreigner, regulating or restricting the entry of
foreigners.” 137
In this way, this Act directly violates the Refugee Convention.
Article 3 (1,2) of the Order, duplicates the restrictions about the entry of foreigners
into Indian territory and contains the list of some specific criteria for denying
foreigners entry into India such as possession of a valid passport and a valid visa at
the time of entry into India until they are exempted from possession one. In most
cases, refugees do not have such documents and that is why they are denied to enter
into India. Moreover, under Article 3 (2, 3) of this Order, Indian government has the
132
The Registration of Foreigners Act, 1939, Act No.16, http://mha1.nic.in/pdfs/The%20Registration
%20of%20Foreigners%20Act,%201939.pdf
133
See: India: Act No.31of 1946, , Foreigners Act 1946, Section 2 (a)
http://www.refworld.org/docid/3ae6b4df4.html; Foreigners Order 1948, Order Under Foreigners Act
1946, Ministry of Home Affair Notification, New Delhi, the 10th
February, 1948,
http://artassam.nic.in/Passport%20Deptt/Foreigners%20Orders%201948%20Order%20Under%20The
%20ForeignersAct,%201946.pdf
134
Sengupta, I., (2008),
135
See, for instance, the Foreigners (Restriction on Movements) Order, 1960; Foreigners (Restriction
on Activities) Order, 1962; Foreigners (Restrictions on Residence) Order, 1968;
136
137
See: India: Act No.31of 1946, , Foreigners Act 1946, Section 3 (1,2)
http://www.refworld.org/docid/3ae6b4df4.html

power to prohibit entry in ad hoc way, by attaching “such conditions as it thinks fit to
grant leave to enter.” Furthermore, Indian government can refoule refugees at the
border, directly violating the Refugee Convention and international customary law, if
the refugees cannot meet certain criteria, such as possession of a passport.138
The
policy of non-refoulment, became a customary law long ago and means to prevent a
country from expelling refugees to countries where their lives or liberties would be
threatened.139
This policy is practiced by the majority of states, including 137
signatories to the Refugee Convention as well as the states which are not the part of
this Convention and it means that there is no matter wheatear the persons seeking
asylum are in countries that are signatories to the Convention or not.140
Other the most important legal document of India - Constitution contains few articles
which are equally applicable to refugees on the Indian soil as well as to the Indian
Citizens, namely article 14, 20 and 21. 141
According to these articles, Indian Citizens
as well as foreigners (refugees) are entitled to the equality before law, protection in
respect of conviction for offences and protection of life and personal liberty.
Moreover, the rules of natural justice142
to refugee issues were adopted by many
Indian High Courts in addition to the recognition of the United Nations High
Commissioner for Refugees (UNHCR) as a key actor in the protection of refugees. In
many different judgments rendered by the Hon’ble High Court of Guwahati, the
refugee issue was recognised and refugees were allowed to approach the UNHCR for
determination of their refugee status, but at the same time, the deportation orders
staying issued by the district court or the administration.
As I already mentioned above, cases for refugees’ issues are considered on a case-by-
case basis. As an example, I can present such cases as: “Gurunathan and others vs.
Government of India and others”143
, according to the judgment of the High Court of
Madras: “any Sri Lankan refugees should not be forced to return to Sri Lanka against
their will”.
138
Foreigners Order 1948, Order Under Foreigners Act 1946, Ministry of Home Affair Notification,
New Delhi, the 10th
February, 1948, http://artassam.nic.in/Passport%20Deptt/Foreigners%20Orders
%201948%20Order%20Under%20The%20ForeignersAct,%201946.pdf
139
United Nations 1951 Convention Relating to the Status of Refugees, Article 33,
140
141
Constitution of India, Articles 14, 20, 21 http://indiacode.nic.in/coiweb/welcome.html
142
Natural justice (legal definition) – basic or fundamental judicial rights extended to a person with
rights at issue; a word used to refer to situations whereaudi alteram partem (the right to be heard) and
nemo judex in parte sua (no person may judge their own case) apply. For more information see:
http://www.duhaime.org/LegalDictionary/N/NaturalJustice.aspx
143
Union of India vs. Mr. P. Gurunathan

Other case of P.Nedumaran vs. Union Of India, which petition was granted by the
Madras High Court, was related to the writ of mandamus144
prayed by Sri Lankan
refugees directed to the Union of India and the State of Tamil Nadu about the
permission for UNHCR officials to check if the refugees returning back to Sri Lanka
voluntarily or not. And moreover they asked to permit those refugees who do not
want to return to the home-country, to stay in the campus in India. The decision of the
Hon’ble Court sounded as: “since the UNHCR was involved in ascertaining the
voluntariness of the refugees’ return to Sri Lanka, hence being a World Agency, it is
not for the Court to consider whether the consent is voluntary or not.”145
Later, the
competence and impartiality of the representatives of UNHCR were acknowledged by
the Court. These two cases present the range of cases which were positively decided
in favour of refugees, but there are cases as well where the Court did not uphold the
claim.
One of such cases is “Hans Muller vs. Superintendent, Presidency Jail”. According to
the Supreme Court decision, the Union Government has an unfettered right to expel,
under the Foreigners Act. 146
Many years later, the decision of the Supreme Court in
another famous case “Louis de Raedt vs. union of India” repeated the general power
of the Indian government to deport foreigners (refugees).147
4.3 Contradiction between International law and Indian domestic law.
All issues which were discussed in previous sub-chapters pose a big question about
contradiction between International and Indian domestic law. In which cases does
India follow international law documents and when – domestic legal provisions?
There are only few provisions on the status of international law in India, which are
written in the Constitution. One of the important provisions is in Article 51 (c), which
says that:
"the State [India] shall endeavour to foster respect for international law and treaty
obligations in the dealings of organized peoples with one another."148
144
Mandamus – [Latin, We comand.] A writ or order that is issued from a court of superior
jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual to
perform, or refrain from performing, a particular act, the performance or omission of which is
required by law as an obligation. For more information see: http://legal-
dictionary.thefreedictionary.com/mandamus.
145
P. Nedumaran vs Union of India,
146
Hans Muller of Nurenburg vs Superintendent
147
Mr. Louis De Raedt & Ors vs. Union of India and Ors
148
Constitution of India, Op. cit., Article 51 ( c)

In this provision notion “international law” represents international customary law
whereas “treaty obligations” – international conventional law.149
Article 51 (c) is not
an enforceable provision as it is placed under the Direct Principles of State Policy in
Part IV, so it looks like international law is not incorporated into the Indian municipal
law (which is binding and enforceable). If, nevertheless, this article is read with other
articles, foreign policy statements and judicial opinion, then it means otherwise.
At the time of British rule, Indian courts administered the English Common Law. It
means that the main principles of governing the relationship between international
law and municipal law under the common law doctrine were accepted. Under this
doctrine, generally, rules of international law were not accepted as part of municipal
law. If, nevertheless, there was no contradiction between these rules and the rules of
municipal law, then international law was accepted without any incorporation.
However, to implement some international treaties which affect private rights of
individuals, the modification of statutory law and the adoption of the enabling
legislation in the form of an Act of Parliament is required under abovementioned
doctrine.150
All these principle are still valid, even after the independence of India, according to
the Article 372 of the Constitution, which states that:
"all the laws in force in the territory of India immediately before the commencement
of this Constitution shall continue in force therein until altered or repealed or
amended by a competent legislature or other competent authority." 151
Article 253 of the Constitution relates to the incorporation into municipal law, the
international obligations undertaken at the international level or under international
instruments and it states that the Parliament is empowered to do these changes:
"Parliament has power to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention with any other country or
countries or any decision made at any international conference, association or other
body."152
The judicial opinion in the case of contradiction between the rules of international law
and municipal law, states that the municipal law should prevail over international
149
Alexander C.H., (1952), p.291,
150
SAHRDC, (1997)
151
Constitution of India, Op. cit. Article 372; Gurdeep Singh,(1988), p.218
152
Constitution of India, Article 253

law.153
It means that if the rules of international refugees law do not contradict Indian
legislations and policies on the protection of refugees, then international refugee law
is a part of the municipal law.
4.4 Category I Refugees – The Tamils
In India, refugees are divided into three categories:
I. Refugees – fully protected according to standards provided by the
Government of India (Tamil Refugees from Sri Lanka, the Buddhist Jumma people
from Muslim Bangladesh);
II. Refugees – recognised only by UNHCR and are protected under the
principle of non-refoulment (Afghan, Iranian, Somali, Sudanese and Burmese
refugees);
III. Refugees – whose presence on the territory of India is not recognised
neither by Indian Government, nor by UNHCR but they have entered India and have
become similar with the local communities (Chin refugees from Burma).154
As I already mentioned, Tamil refugees have fled to India in several waves. In
the same way, repatriation process was arranged in several waves too which stopped
at once whenever Indian shores were flooded again with another refugee wave fleeing
Sri Lankan violence. And as it was referred before, the majority of Tamil refugees
were and are still held in camps along the coastal Indian states of Tamil Nadu and
Orissa.155
Normally, the Tamil refugees were welcomed to Tamil Nadu, but the assassination of
Rajiv Gandhi changed the public opinion and government attitude against the
refugees. That is why, according to the Indian program of “voluntary” repatriation,
more than 23,000 refugees were repatriated without international supervision. It is
now obvious that most of these refugees were forced in various overt and covert ways
to leave the refugee camps in Tamil Nadu. Those refugees, who decided to stay in
India, experience poor living conditions, although they vary from district to district,
depending on the local officials. The camps closest to Chennai (capital of Tamil
Nadu) are well-maintained while others suffer from accumulated waste, lack of
electricity and poor sanitation. 156
153
SAHRDC, (1997)
154
Sengupta, I., (2008)
155
Xavier, G., (2008)
156
Xavier, G., (2008)

Moreover, the health conditions in the camp are poorly as NGOs are not allowed to
enter the camps and provide primary health care and supplement miserable stipends
and food monthly. So refugees spend their little money on expensive open market
food. Furthermore, the stipends are used by camp officials as a bargain to enforce the
refugees to leave the country as only under this condition they can get their
stipends.157
Furthermore, there are few so-called Special Camps (has been converted from the
jails), where hundred of Tamils with suspected terrorist links (LTTE) are held.
Although, many of arrested and detained refugees (under the Foreigners Act) were
non-militant, young Tamil males and they still do not know why they were arrested.
The Government of India justifies these arrests as well as Special Camps as necessary
measures to deal with alleged Liberation Tigers of Tamil Eelam terrorists.158
One more observation is that the Tamil refugees feel adverse effects as India is not a
signatory of the international Refugee Convention where the basic rights such as food,
water and shelter are established as the duty of the host country to provide its
refugees. In other words, Tamil refugees always depends on the good will of the
political party in power, although the State Government of Tamil Nadu shows
sympathy to the refugees’ issues, but the maintenance of the refugee camps according
to the well-recognized international standards is uniformly failed.159
CHAPTER FIVE: Sri Lankan refugees in India
5.1 Camp system and registration process on the territory of India
Normally, Tamil refugees who flee from Sri Lanka, land in Rameshwaram area,
which is located at Dhanushkodi Island in the Ramanathapuram district of Tamil
Nadu and after they are sent to the transit camp. The main refugees flood from the Sri
Lankan territory comes from several areas such as Kilinochchi, Mullaitive, Vavuniya
as well as Thalaimannar, Pesalai.160
Upon the arrival in India, first of all, refugees go through the examination of the
Indian Navy and later Special Branch enquiry. This process is to ensure that these
people are genuine refugees and they fled from Sri Lanka, affected by the ethnic
157
Xavier, G., (2008)
158
SAHRDC, (1997),
159
SAHRDC, (1997)
160
TN & Pondicherry PUCL report (2006); Also see appendix 1

problems and struggle for life. Next step is the refugees screening by the police
authorities of the “Q” Branch161
and Intelligence Bureau in order to segregate the
militants (LTTE) from the actual refugees and to check their antecedents. If the
verification process discovers any smugglers or former LTTE members then they will
be put in jail or special camp by local authorities in order to restrict their movement
and safeguard the security of the State according to the U/s 3 (2) e of India’s Foreign
Act, 1946.162
The possession of identification cards, school records etc is checked as
well. And at the end the refugee names are registered in the refugees admission
register by the Indian authorities and refugee identity cards with their photo are
granted. After this, the refugees are brought to the transit camp, also located in the
Ramanathspuram district, where they stay for a limited period as their final
destination is any refugee camps in other parts of Tamil Nadu.163
The first wave of Sri Lankan refugees reached the Indian shore in 1983 and at that
time all refugees were divided into three groups. There were the militants in special
camps in addition to the camp and non-camp refugees.164
 The Refugee as Militant: It is considered that militant leadership is elitist
stratum of the society and that is why the clear line was drawn to distinguish
between the militant elite and the mass of refugees. After the assassination of
Rajiv Gandhi, all these camps were closed down165
, but at the present time
other special camps function in Chengalpattu Taluk of the Kancheepuram
district and in Cheyyar Taluk of the Thiruvannamalai district of Tamil Nadu at
tight internal security as they do not receive case dole and are supplied with
food and their movement is restricted. Moreover, there are restrictions even on
receiving and sending letters. In other words, life conditions are really poor in
these camps.166
As I have mentioned above these refugees are former LTTE
members or smugglers. Approximately two hundred people are living in these
camps nowadays. 167
161
“Q” Branch Police – security agency in Tamil Nadu. See: India Alert to Terrorists Using Sri Lanka,
The Sunday Leader, (2014); K Bhavaneeswari, first woman IPS officer to head “Q” branch to del with
extremists, (2013)
162
India: Act No. 31 of 1946, Foreigners Act, 1946,
163
TN & Pondicherry PUCL report (2006); Valatheeswaran., C., Irudaya Rajan., S. (2011) p.32
164
Hans, A., (1993) p.30
165
Hans, A., (1993), p.30
166
Valatheeswaran., C., Irudaya Rajan., S. (2011) p.33
167
See more information: Dr. Himanshi Raizada, (2013) p.16

 Non-camp Refugees: These refugees do not receive any financial assistance
from the government. Normally, they are the representatives of the middle and
upper middle class people (businessmen and professionals) who can afford to
live outside the camp by some means of employment activities or with
remittances from relatives abroad.168
There are no proper data about non-camp
refugees as most of them have not registered themselves despite the circulars
about the registration for non-camp refugees at the nearest police station
periodically issued by the government of Tamil Nadu. Estimates vary between
25,000 and 50,000. One of the reasons is vulnerability of Tamil refugees, as
they feel that the Government of India or the state government any time can
change their „open door policy towards the Sri Lankan refugees and order‟
them back to Sri Lanka.169
Moreover, the main reason for these people to flee was the education of their
children which always was vulnerable due to the situation in Sri Lanka (since
1983). Despite a number of Tamil medium schools in the state, they like to
send their children to English medium school with a dream to go to the West
in the future.170
 Ordinary Camp Refugees: There are two kinds of camps in Tamil Nadu –
temporary (transit) camps and permanent camps. In its turn there are 112
permanent camps located in 26 of the 30 districts of Tamil Nadu and most of
them in rural areas.171
Many of these camps were constructed for Tamils who
were being sent as indentured labour during Colonial time. While old
buildings, such as schools, abandoned factories serve as temporary camps.
There are also semi-permanent brick structures with tin roofs or temporary
hutments which were constructed for the same purpose. Conditions of living
are poor in such camps, as supply of water and electricity is not stable.
Moreover, there is only single bath and lavatory for almost two hundred
people.172
168
Hans, A., (1993), p.30 ;Valatheeswaran., C., Irudaya Rajan., S. (2011) p.33
169
Dr. Himanshi Raizada, (2013), p.15
170
171
Suryanarayan., V. (2013); Valatheeswaran., C., Irudaya Rajan., S. (2011) p. 32
172
Dr. Himanshi Raizada, (2013), p. 15

5.2 Refugee assistance from the State Government as well as the
Government of India
Generally, when refugees arrive in the asylum country, first thing what they feel is a
lack of material resources which can help to meet their basic needs. Sri Lankan
refugees are not exception to the rule. The material resources are coming in the way
of humanitarian aid from different NGOs and international agencies as well as the
local government. Tamil Nadu Government assists the Sri Lankan camp refugees on
humanitarian background. According to the Tamil Nadu Government’s Infrastructure
Development Programme, each household gets cash assistance for improving the
physical infrastructure of the camp such as the repair of huts, street lights, the
provision of drinking water, toilets and road facilities.173
Refugees are provided with:
 Cash dole (the head of the family gets Rs.400, each additional member over
age 12 gets Rs.288, the first child (less than 12 years) gets Rs.180, and each
additional child gets Rs.90 under the cash assistance scheme);174
 Subsidised rice rations (The rate is Rupees 0.57 per gram. Each adult is
supplied 400 grams of rice per day and children are supplied 200 grams.
Moreover, sugar, kerosene oil, wheat are also supplied at subsidized rates);
 Set of utensils (every two years, five kinds of utensils worth Rs. 250);
 Clothes free of cost (saris and dhotis, once a year, in the time of Pongal
festival)175
Refugees are also provided with such additional facilities as free medical services
from government hospitals, primary education and even money for funeral rites.176
To sum up, overall Rs. 500 crore were spent by Indian Government for the Sri Lankan
refugee relief programme within period from 1983-2009. Firstly, the wherewithal
were allocated by the Tamil Nadu Government and later compensated by the Indian
Government.177
5.3 Livelihood problems and strategies in refugee camp
173
174
175
176
Valatheeswaran., C., Irudaya Rajan., S. (2011) p.33; Dr. Himanshi Raizada, (2013), p.14
177
Valatheeswaran., C., Irudaya Rajan., S. (2011) p. 34

According to the different resources and researchers178
, camp’s infrastructural
facilities are very poor. Shelters for every family consist of a room and a little space
outside which is used as a kitchen. But as these shelters were constructed (from
leaves, cement, asbestos, iron sheets) decades ago as temporary housing by the State
Government so there is no wonder that they are in really bad condition now They are
naturally, easy damaged by heavy rains. All these issues cause health problems (skin-
related diseases, headaches, etc.) for the refugees, especially children.
Other big problem within the camps is the poor sanitation (flowing waste water,
sewage inundate the territory of the camp, which leads to the muddy street and as a
result to spread of communicable diseases such as malaria, typhoid, diarrhoea, and
skin-related problems). There are no proper toilet facilities although water supply is
more or less adequate (there are well and taps with specific hours of water supply
within the camp itself).179
Another sore point is medical facilities. Although, the Tamil refugees have the right to
free medical services in the government hospitals, they do not get it in a proper way
and are therefore forced to go to the private hospitals and as a result to pay their own
money – around Rs. 800 per month for one household, which seriously deplete their
financial assets.180
Finding employment is one of the most challenging issues. Even if the refugee is
educated and qualified, local people are not eager to employ the Tamil refugees as
they worry that they can face the police investigation if something happens to
refugees (accident or death while working in the field)181
Sri Lankan refugees are not exception from the rule, and they have relatives and
friends abroad who can help with work visa. In addition to this, refugees can get
proper documents to go to the western country with the help of NGOs. That is why
remittances become one of the main incomes for refugees. Countries, from where, the
majority of remittances are transferred, are following: the UK, the United States,
France, Canada and Australia. 182
Moreover, the significant effect on the livelihood of the Sri Lankan refugees has the
political changes in Tamil Nadu governance. The Dravida Munnetra Kazhagam
178
Dr. Himanshi Raizada, (2013), p.15 ; Valatheeswaran., C., Irudaya Rajan., S. (2011) p.34
179
Condition of Eelam Tamil Refugees in Tamil Nadu – A Fact Finding Report. (2013),
180
181
182

(DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK) are two
major political parties in Tamil Nadu. In 1989, the order about the admission to
schools and collages as well as reserving seats for refugees’ children was issued by
DMK Government. But in 1991 AIADMK Government suspended this order, maybe
as a response of the assassination of Rajiv Gandhi. Later new Government of
AIADMK started new programs to improve the living condition of refugees in camps,
such as infrastructure development, nutritional programmes, medical insurance, and a
refugee quota in education.183
5.4 Refugees opinion about camps life and their future together with
some additional facts
“I do not want my child to be born and raised as a refugee,” says Padma, resting her
palm on her five-month pregnant stomach. In 1990 she arrived in India, that time she
was a little girl. The only and biggest transition of whole her life since then was
movement from the refugee camp to the house outside of the camp to live as a “veli
pathivu” (non-camp refugee).184
And it is not solitary instance. Many refugees are
thinking in this way. That is why some of refugees see the solution of such situation
in returning to Sri Lanka despite of the threat to life, and then application for
citizenship in Europe. “Just for the kids,” says Veda (one of the refugees).185
Other major issue which rose for the first time recently is safety of Sri Lankan
refugees in Tamil Nadu. The first accident which posed the question of camp safety
and effectiveness of the law enforcement authorities was the rape and murder of a six-
year-old girl inside a Sri Lankan refugee settlement in Mettipatti, Tamil Nadu, in
2012. In addition to this, the growing smuggling activities associated with Sri
Lankans living in India illegally also bring the question about safety. And in its turn,
refugees start wondering what is better to stay in the camp or to return to Sri Lanka.186
Those refugees, who still dream of a future in India, have not so many choices. First
of all it is necessary to mention that the first phase of refugees, who came in the
eighties, have been in India for 30 years and 90% of them still haven’t got citizenship.
Only children who were born in India and whose one parent is a local Tamil can get
citizenship. Other thing is that it is not easy to become successful in life in not native
183
184
Srividia, P.,V., (2013)
185
Ghosh, P. (2014)
186
Handunnetti, D., (2012)

country, especially when you are refugee. For example: in India, Murali – a car-
washer with the dream of owning his own shop, but before the war broke out in Sri
Lanka, he was a student of literature and was studying to be a teacher. He shares his
salary (Rs.15,000) between parents who are still in Sri Lanka and cousin who is living
in the camp, and moreover he pays for rent and food. Is it possible that his dream
come true? Who knows…187
There are so many opinions about returning or repatriation to Sri Lanka as many
people.188
CHAPTER VI: Durable solutions, UNHCR and NGO’s activities
6.1 Durable solutions
By the 1970s, Asia and Africa was enveloped by many critical events which gave rise
to mass exodus. That is why UNHCR presented and started promotion of the durable
solutions (now very familiar): repatriation, integration (local settlement), and
resettlement. The latter means to transfer refugees from the countries of first asylum,
to the other country, mainly it was European continent, North America, Australia and
New Zealand but these transfers were “orderly” limited to “quotas” of particular
desired nationalities or religious groups.189
The interesting fact is that voluntary repatriation is the durable solution which
has historically benefited the largest number of refugees. A key protection tool and a
187
Ghosh, P. (2014)
188
See Appendix 2
189
Harrell-Bond Barbara (1995), p.7

significant responsibility sharing mechanism is resettlement. In its turn local
integration is a complex and gradual process, comprising distinct but inter-related
legal, economic and socio-cultural dimensions.190
In next subchapters I will consider durable solutions in general and discuss the pros
and cons of them.
6.1.1 Voluntary repatriation
The idea of voluntary repatriation is supported by everyone as the ideal, best,
preferred, most desirable solution, but unfortunately there is no agreement on the
means of achieving it. Ironically voluntary repatriation is the most desirable between
durable solutions, however UNHCR, the international community and individual
states have the greatest limitations of mandate, influence, time and resources in this
area. Normally, UNHCR budget in assisting voluntary repatriation activities is limited
to one year, and as a result UNHCR cannot face economic and development
difficulties in the country of origin that can preclude return. Secondly, refugees cannot
be returned against their will to their home country and it is the core. In other words,
decision whether or not to repatriate should be made voluntarily by refugees. Truly,
the decision should be made by refugees on the basis of necessary information and
pre-repatriation visits. In such way, refugees would gain the ability to take this issue
into their own hands and organize repatriation; however they are often rushed into
hasty decisions caused by hopelessness, insecurity and lack of assistance.191
So it
looks that voluntary repatriation is not always the best answer or a possible option.
6.1.2 Local integration
According to the UNHCR definition, local integration is the process by which the
refugees are “integrated” into the social and economic life of the community. “A
situation in which host and refugee communities is able to coexist, sharing the same
resources – both economic and social – with no greater mutual conflict than which
exist within the host community” – definition made by Harrel Bond.192
The 1984 ICARA II (Second International Conference on Assistance to Refugees in
Africa) Declaration notes: Where voluntary return is not immediately feasible or
190
UNHCR (2010) p.10
191
Barnett Michael (2001) p.34
192
Harrell-Bond, B(1986) p. 4

possible, conditions should be created within the country of asylum for a temporary
settlement or the integration of refugees into the community and their full
participation in its social and economic life.193
In spite of this declaration, many host
countries are hesitant about either temporary settlement or local integration.
Operationally, there is no big difference between temporary settlement and local
integration. In both cases the host permission needed so refugees can "participate on
an equal footing in its social and economic life".194
The forms of assistance will differ
a little bit for one or other type of settlement. In terms of policy the main difference is
that temporary settlement is not meant to be a durable solution, the refugees are
allowed to remain while waiting for voluntary repatriation to become feasible.
6.1.3 Resettlement
According to Goodwin-Gill, ‘resettlement is about refugees moving from a transit, or,
country of first asylum to another or third state’.195
The resettlement policy of the dissidents, especially from the former Soviet Union as
the most favourable and viable solutions, was advocated by most western democratic
states during the cold war period. But the end of the cold war has brought the end of
the favour of the most asylum states towards resettlement as a durable solution.196
Few resettlement countries are willing to offer citizenship to refugees, although this
would facilitate their long-term integration into the host society.197
Most affluent countries are unwilling to accept and resettle more refugees. They
advance such reasons as security considerations, growing unemployment,
preservation of culture etc as rationale for their standpoint.198
6.2 Strict rules towards NGO’s in Sri Lanka
The relations between local/international NGOs and the Sri Lankan government never
were easy but they worsened after the 2004 tsunami, when so many NGOs were ready
to propose their help. There was a huge contribution to reconstruction and
rehabilitation but there were also such new organisations which were ineffectual and
193
UN 1984c
194
UNHCR 1984c
195
Goodwin-Gill, G(1996) p.276
196
Chimni, B. S (2000), p.331
197
Loescher-Gill (1993). pp.148-49
198
Carens, J. H (1987). pp.259

moreover even involved in corruption and religious converting. One of the biggest Sri
Lankan political parties which criticised the presence of international NGOs was the
Sinhalese nationalist JVP political party with its allies as the tsunami hit most of those
areas where Tamils and Muslims were living and of course, much of foreign
assistance were provided there. As a result these NGOs were suspected in links and
support of LTTE by the JVP and its allies.199
In 2007, during Cricket World Cup, there was campaign launched by Amnesty
International about human rights violations in Sri Lanka. Of course, it didn’t improve
anyhow the relations between NGOs and Sri Lankan government. Furthermore, the
last one suggested that the international human rights organisation was linked to the
LTTE. Even Sri Lanka’s peace secretariat realised the report with the title “Amnesty
International’s Campaign and LTTE’s Expectations Fail”.200
This situation did not change drastically after the end of the conflict as well. Although
there was small period when the government relaxed check points and most NGOs
got access to the war-affected population in the north, where the access was restricted
by the Tamil Tigers during decades-long civil war. Nevertheless, it did not last long
and the regulations were tightened by government and in such way making the access
to people in need more problematical. 201
As I already mentioned in the previous sub-
section one of the biggest change was a transfer of the government’s NGO Secretariat
from the control of the Civilian Ministry of Social Services to the Ministry of Defence
(MoD)202
and since that time few NGOs have been denied access to the region,
pending approval from the MoD. The aid workers differed in their thoughts about new
regulations. Some of them assumed that it’s a positive step as it proves the
government effort to develop the effective monitoring system for NGO’s work;
moreover it shows also concern about the security of people involved in humanitarian
activities. Other aid workers saw these new regulations as the unnecessary obstacles
in their work.203
A statement from June 2013 from the Ministry of Defence and Urban Development
supported oversight of the country's NGOs as necessary for national security and to
counter terrorism, emphasizing that:
199
HRW (2007) pp. 91-100
200
HRW (2007) pp. 91-100
201
IRIN (2010)
202
National Secretariat for Non-Governmental Organisations, About us,
203
IRIN (2010)

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