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A Publication
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Genocide In Sri Lanka: "It's A Question That Certainly Needs To Be Litigated"

By Usha S Sri-Skanda-Rajah

23 February, 2015

"...it is a question that needs to be litigated because, the (Sri Lankan) government certainly behaved as though its intention was to wipe out at least a part of the Tamil community and to produce conditions in the North which made it difficult for them and their culture to survive"

-Geoffrey Robertson QC

There are two related issues currently of critical consequence to Tamils:

· The deferment of the release of the OISL report (the OHCHR Investigation on Sri Lanka report) initially fixed for March 25, 2015

· and the question of whether or not it was Genocide and the Dire need for it to be litigated.

These questions encapsulate the critical debate that is raging among the protagonists in the Sinhala Tamil ethnic conflict with so called arbitrators on the side. The debate has moved since 2009 from the battle field which according to the UN's final admission of sorts culminated in 70,000 Tamil civilians left dead [1] ; to triumphalism at its worst displayed by the Rajapaksa government side.

Gradually then it advanced to the political and diplomatic arena with expectations rife that it could possibly finally shift to high gear to the legal arena. But lately what with the Foreign Affairs Minister Mangala Samaraweera of the new regime in Sri Lanka making the rounds, crisscrossing the world and writing to the OHCHR Chief, Zeid Ra'ad Al Hussein to postpone the release of the OISL with the assurance that Sri Lanka is ready to conduct its own investigation, there is no end to speculation, uncertainty and a feeling of another betrayal for the Tamils.

All this going on whilst major international players like US and India, it is thought, is involved in steering things by, the developments that is. The only redeeming feature of this development on "deferral", which is a cause for comfort is the High Commissioner's undertaking [2] that it would only be a "one time deferral" and that report won't be "shelved" with a subtle hint, "the request was made [3] (Mangala Samaraweera to him) based on the ‘changing context in Sri Lanka' and the possibility of new information becoming available for the report.." Which makes one speculate whether it means the High Commissioner is expecting OISL investigators to be permitted in to Sri Lanka or if it means Sri Lanka's proposed domestic mechanism, that is still to be commissioned would shed more light on the truth of what happened in Mullivaikkal.

The article on the question of 'Deferment of the OISL report and where is the justice in that Deferment' will be a sequel to this article, here the focus would primarily be on the second question:

Genocide : "It's A Question That Certainly Needs To Be Litigated"

What's this about the 'G' word in Sri Lanka, some would say light heartedly, sadly for those who haven't made the long and arduous journey with Tamils, walking in their shoes; in their desire for equal treatment and fundamental political and human rights, this word would have no meaning, for they would not have a clue how this word 'Genocide' best represents the slow but systematic destruction of the Tamil race in the island that culminated in the elimination of a part of them in 2009.

The Tamil Diaspora would not be deterred from seeking the truth

To those who want to cover-up the injustices inflicted on Tamils, the injustices that was and is focused intently on the systematic destruction of their national identity, possessions, land, security and lives, 'Genocide' is to be dismissed as just false propaganda, viewed by them as a mere ranting of an insignificant lot in the Diaspora far removed from their "non-existent " homeland in the Northeast; and because it matters not what they think. The Diaspora has proved that this kind of rejection of the Diaspora would not deter them from coming to the ultimate truth and/or seeking remedial justice for the victims of genocide.

Truth cannot be bartered for special interests

Are Tamils and the mass atrocity crimes that were committed against them, now to be investigated by the perpetrators themselves and their kinsmen, so insignificant, that it can be left in the very hands that sought to destroy them; that the truth can be bartered for the geo-political self interests of some major powers.

1. NPC charges genocide

Having been in denial ever since, Sri Lanka has never come to terms with the hard truth. As a result the Northern Provincial Council's (NPC) very brave and courageous stand in passing a resolution [4] on, "Sri Lanka's Genocide Against Tamils," calling on the "ongoing" OISL investigation on Sri Lanka to investigate the claim of genocide and recommend prosecutions," didn't sit well with the new regime - because the NPC's move would be seen as undermining the new regime's plans to win a majority in the parliamentary elections set for April in order to remain in power and the major international powers' desire to keep them there.

I salute the NPC for taking this most crucial initiative that most certainly sets the bar for any domestic investigation contemplated. The NPC resolution didn't mince words; it was pointed, it retraced the history of, "successive Sri Lankan governments' genocide against Tamils," and rightly so:

I quote:

"This resolution provides an overview of the evidence demonstrating successive Sri Lankan governments' genocide against Tamils, and respectfully requests the ongoing United Nations Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL) to investigate the claim of genocide and recommend appropriate investigations and prosecutions by the International Criminal Court."

End quote.

A direct 'challenge to the moral integrity of the Sinhalese majority'

That, "it should challenge the moral integrity of the Sinhalese majority," [5] words uttered by the NPC Chief Minister following the passage of the resolution may or may not prick the conscience of the Sinhalese majority but he probably was making a pointed reference to the importance of owning up to truth. 

The NPC's resolution "did not go well with the Colombo leadership with the Health Minister Rajitha Senaratne calling the NPC resolution an "extremist position".

Wigneswaran had earlier declined the use of the word 'Genocide' in a previous resolution introduced by M K Shivajilingam, in January 2014, "observing it had a very specific meaning legally and hence had to be used with caution." But this time The Chief Minister, "had decided to move it after carefully studying various incidents over the years," TheHindu reported.

The NPC in its 11page resolution makes a strong and convincing case for genocide, TheHindu reporting in its headline that the, "'Tamil Province Charges Colombo with Genocide." [6]

This resolution articulates the thoughts, feelings and conclusions of the Tamil people and should be treated as coming from the horse's mouth. The NPC an institution that represents overwhelmingly the Tamil people from the Northern Province who have lived, breathed and suffered at the hands of successive chauvinistic Sinhala Buddhist dominated governments who have failed to put the Tamil people's interests at par with their Sinhalese counterparts. 

The Genocide Deniers

Like in most other genocides and the holocaust, there's no doubt the NPC resolution has created an uproar among those genocide deniers in Sri Lanka; those who seek a cruel pleasure in denying that we are a nation, that we are entitled to rights, that we deserve to share power; although we have all the attributes of a nation, where other countries like the UK and Canada have evolved and adapted to power sharing, Sri Lanka still insists on a unitary formation.

For example the vociferous ones like Dayan Jayatilleka [7] in his usual audaciously, chauvinistic style and in a bid to muzzle the Tamils, has condemned the NPC action as going further than its ambit as a Provincial Council - for Dayan NPC had dropped a bombshell: Wigneswaran and Northern Council Detonate 'Genocide' resolution he balks; in a later article [8] he makes the observation that he sees this as the "writing on the wall" and that this development was going to lead to the "dismantling of the Sri Lanka state". And what was laughable was the analogy he used which didn't quite fit his argument - the parallels he drew was about a woman subject to "conjugal rape" who would not want to live with the perpetrator any more. Now I would say a woman repeatedly raped has every right to seek justice in the courts and most certainly should be able to file for divorce. I thought Dayan didn't help his cause with that argument because he was himself admitting to the commission of a serious criminal offence here and what the natural consequence of that would be. In any court of law a marriage that has the wife complaining of repeated rape by the husband would be given a divorce outright and more than that the husband would have to most certainly stand trial on the very serious charge of rape with a fitting rigorous punishment. 

Then there's Shenali Vaduge, the mouth piece of Gotabaya Rajapaksa who used to have her articles posted on the Sri Lanka Defence Ministry web site when Gota prevailed. Shenali who was made to eat her words, with one of her articles having to be withdrawn from the ministry site when she made a libellous statement about the former Tamil Nadu Chief Minister. In response to the NPC resolution she has called on President Sirisena to dissolve the NPC with immediate effect and wanted the 13th amendment abolished as well in her article now appearing no more in the Defence Ministry site but somewhere, where they'll have her rhetoric, headlined: President Should Dissolve Northern Provincial Council on Genocide claim." [9]

Genocide it is

The Genocide perpetrated against the Tamils has been taken up, debated, analysed and agreed upon not just by the Tamil Diaspora or the Northern provincial Council but also by many authors, by the former Prime Minister of Singapore, Lee Kuan Yew, the Permanent People's Tribunal and an eminent lawyer, Geoffrey Robertson among other: 

2. The Permanent People's Tribunal delivered a guilty verdict on the charge of genocide

The Permanent People's Tribunal in its second sessions specifically addressed the crime of genocide and after examining 30 eye witnesses, laying down the acts committed by the Sri Lankan government and found that, "genocide against the "Ealam Tamil Group had not reached total destruction of their identity, that however...the process was ongoing."

I quote:

"The tribunal found that genocide against the Eelam Tamil group has not yet reached the total destruction of their identity; however, the genocide is a process and the process is ongoing. The military killings of May 2009 have been transformed into other forms of conduct causing serious bodily and mental harm to members of the group. The tribunal considered that the proof established beyond any reasonable doubt that the following acts were committed by the government of Sri Lanka:

"Killing members of the group, which includes massacres, indiscriminate shelling, the strategy of herding civilians into so-called ''no fire zones'' for the purpose of killings, targeted assassinations of outspoken Eelam Tamil civil leaders who were capable of articulating the Sri Lankan genocide project to the outside world."

"Causing serious bodily or mental harm to members of the group, including acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury.

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part, including expulsion of the victims from their homes; and seizures of private lands; declaring vast areas as military high security zones to facilitate the military acquisition of Tamil land...."

End quote.

3.UN workers in an Independent Report speak of the genocidal acts that were committed

In an article titled “Independent Report on Sri Lanka and United Nations Human Rights Violations” [10] Julian Vigo the author interviews UN workers who were posted in Sri Lanka before they were expelled by the Sri Lankan government who give damming testimonies against Sri Lanka and their United Nations Senior officials and its hierarchy - and on how the two colluded and were silent on acts of genocide that were committed.

4.Sri Lanka's Secrets: How the Rajapaksa Regime Gets Away With Murder - "chronicle of genocide"

Bruce Haigh a political commentator and a retired diplomat, who served in Sri Lanka and a former member of the refugee review tribunal, who reviewed, Trevor Grant's book, Sri Lanka's Secrets: How the Rajapaksa Regime Gets Away With Murder, has no doubt the book is a "chronicle of genocide" [11]

I quote: 

"The author, Trevor Grant, details the final cruel days of the thirty-year civil war in Sri Lanka during which the Sinhalese armed forces murdered tens of thousands of innocent Tamil men, women and children. The tightly written and moving text is supported by graphic photographs conveying their own reality of the horror.... At the end of the book Grant quotes the UN High Commissioner for Human Rights, Navi Pillay, "Rwanda's lessons were not implemented in Sri Lanka".

The Tamils of Sri Lanka continue to undergo a process of genocide, a fact frequently noted by Grant. At a full session of the Rome based Permanent Peoples Tribunal held in Bremen, 7/10 December 2013, to consider evidence gained over three years found, "... that the State of Sri Lanka is guilty of the crime of genocide against Eelam Tamils."

End quote.

5. Sri Lanka Hiding the Elephant - The Doctrine of 'Double Effect'

Prof, Ramu Manivannan, Chair of the Politics and Public Administration Department of the University of Madras in his book, Sri Lanka: Hiding The Elephant - Documenting Genocide, War Crimes and Crimes Against Humanity, explains the 'Doctrine of Double Effect' to make his case "for Sri Lanka's twin genocidal strategy" which Vinoj Kumar mentions in his review of the book , which I quote in my perspective on the author, Prof. Ramu Manivannan [12] :

I quote:

“In recognition of the war crimes and crimes against humanity committed by the Sri Lankan government and its authorities, we need to ask whether there is a unique case or a distinct crime here? The answer is yes. …The genocide of Tamils in Sri Lanka has taken place over a period of time involving several steps and strategies, and this includes continuous dismantling and destruction of the essential foundations of human life of the Tamils in Sri Lanka…To be precise, the Sri Lankan government has employed the ‘doctrine of double effect', the brutal military resolution of the ethnic conflict combined with the long term strategy of ethnic cleansing… This ‘doctrine of double effect' has been the most unmistakable exhibition of the genocidal intent of the State and its Sinhala nationalism… The genocide of Tamils in Sri Lanka has taken place over a period of time involving several premeditated steps and concealed strategies. This includes organized attacks and destruction of essential foundations of human life common to all civilized human societies.. Interestingly, the book reveals that Gotabaya Rajapaksa was a student of the very same University that has now named him as a war criminal,” says Vinoj Kumar highlighting sections of the book."

End Quote.

In his interview to the Editor of Tamil Mirror published in Canada Prof. Manivannan in response to a question: what kind of impact do you want to make through this book, said, "his primary commitment and interest in writing this book is documenting history," calling the genocide in Sri Lanka "politically constructed..and that it's a structural genocide combined with a cultural process."

I quote:

"My primary commitment and interest in writing this book, as I said before, is documenting the history. Then it's not simply the documentation that lies in the Library. What I advocate in the book is that it is a politically constructive Genocide. The Genocide in Sri Lanka is politically constructed and it's a structural Genocide, combined with the cultural process. Therefore the Tamil question deserves a political solution. So, to take this forward, the message of the book is that the people of Tamil Nadu, the people in North East Sri Lanka and the Diaspora Tamils will have to believe in the political path and this is the time to engage in politics. Be engaged with :

End quote.

6. Lee Kuan Yew : 2009 action against Tamils was "Ethnic Cleansing" [13] :

Calling Mahinda Rajapaksa "a Sinhala extremist" Lee Kuan Yew, also described what happened in Sri Lanka in 2009, during the end of the civil war, "as ethnic cleansing", the FMT News report said ":

I quote:

The father of modern day Singapore made this statement during a conversation with author Thomas Plate, who wrote the book ‘Citizen Singapore: How to Build a Nation – Conversations with Lee Kuan Yew:

Lee described Sri Lanka as an “unhappy country” as it was disunited between the Sinhalese and Jaffna Tamils for decades.

“Yes, they have beaten the Tamil Tigers this time, but the Sinhalese who are less capable are putting down a minority of Jaffna Tamils who are more capable. They were squeezing them out.

“That's why the Tamils rebelled. But I do not see them getting rid of all two million-plus Jaffna Tamils. The Jaffna Tamils have been in Sri Lanka as long as the Sinhalese.”

End quote

7. Geoffrey Robertson recommends that Sri Lanka be taken to the International Court of Justice for genocide through the help of a "good Samaritan state"

Geoffrey Robertson QC an eminent human rights lawyer, retained by the Transnational Government of Tamil Eelam (TGTE) just before the US sponsored resolution was passed, in delivering his expert legal opinion, [14] whilst examining the options available to the Tamil people on bringing a case against Sri Lanka, agreed that Sri Lanka had a case to answer for genocide and did recommend, in his address to the TGTE parliament that under the Convention on the Prevention and Prosecution of Genocide, the Tamil people required a "good Samaritan state" to bring Sri Lanka to the International Court of Justice (ICJ) for genocide. Sri Lanka he said had signed the Genocide Convention in 1950 (whereas it was not a signatory to the Rome Statue that created the International Criminal Courts - ICC). The Tamil people have no access to the court as they were not a state and cannot by themselves bring a case against Sri Lanka because of sovereignty and the lack of it being an issue, "as international law is based, although they're trying to limit it, on the idea of sovereignty, only states have sovereignty, only constituted states were part of the world community." he said.

Quoting article 9 of the Genocide Convention, Geoffrey Robertson says any disputes..including responsibility of the state for genocide could be submitted to the ICJ. The Tamil people need to, "find a friendly country" from one of the "other 140 signatories of the Genocide Convention to take Sri Lanka to the ICJ," he said.

It must be noted that Geoffrey Robertson, also wrote the report on the "unlawful" and "wrongful" impeachment of Sri Lanka's Chief Justice, conducted for the BHRC - Bar Human Rights Committee. Geoffrey Robertson condemning the regime for destroying the independence of the judiciary congratulated CJ Shiranee Bandaranaike for, "coming to a correct and courageous decision in relation to the Constitution and the protection it gives the 9th Tamil Province." This relates to the Devineguma Bill introduced by Basil Rajapaksa where he was seeking the transfer of some provincial powers to his ministry - the CJ had to rule on the question of whether those powers could indeed be transferred. The CJ ruled that such action needed the approval of all Provincial Councils including the Northern Province which had no Provincial Council at that time.

Geoffrey Robertson expressing how honoured he was to address the TGTE parliament spoke of the "barbaric events in 2009" and stressed the need for accountability:

I quote:

"You have suffered the most barbaric events in 2009 where 40,000 - 70,000 of your civilians were bombed. were cut to pieces, were raped, were tortured - and that is something the world cannot forget or forgive - at least until due accountability is made."

End quote.

"Genocide was not ruled out by the Panel of Experts, the question needs to be litigated" : Geoffrey Robertson

Geoffrey Robertson also believed the UN Expert Panel on Accountability although specifically mentioning "war crime and crimes against humanity, and emphasizing that the, "the conduct of the war represented a grave assault on the entire regime of international law, designed to protect individual dignity during war and peace...did not rule out genocide", in other words, "it didn't make a finding of genocide, it didn't determine the question, it is a question that needs to be litigated because, the government certainly behaved as though its intention was to wipe out at least a part of the Tamil Community and to produce conditions in the North which made it difficult for them and their culture to survive" - That implied there was a window of opportunity to pursue the case of genocide as well in addition to war crimes and crimes against humanity.

8. No Fire Zone Movie and Still Counting The Dead provide the evidence among other

The Killing Fields [15] and The No Fire Zone Movie [16] provide hard and definitive evidence of the horrific crimes that took place in the last stages of the war. Frances Harrison's book, Still Counting the Dead [17] contains the harrowing tales of witnesses to war crimes. Although both do not state it was genocide, it would in my view provide documentary evidence for the crime of genocide. [18]

There is no excuse to investigate and prosecute those who committed genocide against Tamils.

The Turks continue to deny [19] the Armenian genocide, giving several reasons why America should not pursue it: The Turks argued that the, "Armenian massacre did not meet the definition of genocide... The Armenian Genocide is only an issue for Armenian Americans... not for Armenians living in Armenia...The Turks are showing new flexibility on the Armenian issue...We shouldn't upset a reliable ally.. this would lead to Turkish backlash...it would hurt American interests." These are very similar excuses that are given by Sri Lanka - that it killed 70,000 Tamil civilians to eradicate "terrorism" and that it would not demilitarise the North East to prevent the re-emergence of "terrorism". 

Recent developments offer little comfort

As the recent developments show the question for concern is whether the international community especially the US is slowly shifting from a previous hard line approach to softening its stand toward Sri Lanka under the new regime, a regime looked upon as an ally and willing to cooperate, helpful to its strategic and geo-political interests; a regime that has to be propped up and helped to win the parliamentary elections so it would continue to remain in power.

Despite the fact that it's now the Tamil people represented by the Northern Provincial Council that is requesting, "the OISL to investigate the claim of genocide and recommend appropriate investigations and prosecutions....." and not the Tamil Diaspora; shouldn't the Tamil people's voice be heard!

[2] https://www.colombotelegraph.com/index.php/unhrc-chief-grants-one-time-only-deferral-of-sri-lanka-war-report/

[3] https://www.colombotelegraph.com/wp-content/uploads/2015/02/hclettertocouncilpres-13feb.pdf

[4] thehindu.com/news/international/south-asia/tamil-province-charges-colombo-with-genocide/article6879400.ece

[5] http://www.tamilguardian.com/article.asp?articleid=13729

[6]   https://www.colombotelegraph.com/index.php/wigneswaran-northern-council-detonate-genocide-resolution/

[7] https://www.colombotelegraph.com/index.php/wigneswaran-northern-council-detonate-genocide-resolution/

[8] https://www.colombotelegraph.com/index.php/the-writing-is-on-the-wall-how-sri-lanka-is-to-be-dismantled/

[9] http://www.lankaweb.com/news/items/2015/02/12/president-should-dissolve-northern-provincial-council-on-genocide-claim/

[10]   [10] http://www.southasiaanalysis.org/node/966

[12] https://www.colombotelegraph.com/index.php/sri-lanka-hiding-the-elephant/

[13]   http://www.freemalaysiatoday.com/category/nation/2013/08/13/lee-rajapakse-a-sinhalese-extremist/

[14] https://www.youtube.com/watch?v=RKy6ZcvUOQU








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