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#001: Black July 1983 Week - Remembering the Genocide of Tamils in Sri Lanka

CONSEQUENCES OF BLACK JULY -USHA SRISKANTHARAJA- WRITER TAMIL ACTIVIST

 

 

கடந்த ஈழ தமிழர் வரலாறு ஆயிரம் கால தமிழர் வரலாற்றை தொடர்ந்து பல நூறு ஆண்டுகள் தமிழருக்கே விளங்கவைக்கும். ஈழ தமிழர் போராட்ட வரலாற்றை ஆவணப்படுத்தும் மற்றும் அதை ஊக்குவிக்கும் பணி புலம்பெயர் தமிழர் கையில் தான் உள்ளது.

யாரோ செய்வார்கள் என்பது சுயநலம், எதிர்காலத்தில் யாருக்கும் தெரியாமல் மறைந்து போகட்டும் என்பது இழிவு.

தொழில்நுட்பம் இல்லாத போதே எதிர்கால சந்ததி அறிய பழம் தமிழர் ஆவணப்படுத்தினர். எதிரியுடன் இடைவிடாத போரின்போது கூட புலிகள் ஆவணப்படுத்தினர். ஆவணங்களை காக்கவென்றே பல தமிழர் துணிவுடன் பயணித்தனர். இவைகள் நிச்சயம் எதிர்கால கைகளில் கிடைக்க வேண்டும்.

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#002 The Black July pogroms are often retold as occurring in Colombo alone. In our remembrance, it is important to acknowledge the various other areas across the island where Tamils were affected by this horrible, genocidal violence. 

The exact number of dead and displaced, homes and businesses destroyed as well as all the names and villages of towns affected, remain unknown. While this list is not exhaustive, we must acknowledge and remember the victims of the pogroms everywhere.

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UNITED NATIONS AND UNHRC’S RESPONSIBILITIES:

As the opportunities for post war peace and reconciliation in Sri Lanka gradually slip away, the members of the UNHRC must act urgently to prevent an ominous slide towards a recurrence of the tragedies of the past.

The Council must ensure that the Sri Lankan government immediately takes steps to offer a political solution to the Tamil people to resolve the long-festering and deep-seated national problem and also address serious concerns about human rights and governance.

The Council must also urgently address questions of truth and justice relating to grave violations of international human rights and humanitarian law, in order to transform the culture of impunity prevailing in the country to one of accountability.

The Sri Lankan government has persistently claimed that, if provided time and space, it will evolve homegrown processes that will address the need for a political solution, improvement in human rights and accountability. This claim must be evaluated against the chronic unwillingness of the government to honor its own commitments to the people of Sri Lanka and the international community. Some of these commitments have been repeated for many years, with no progress made on the ground.

Moreover, the trajectory of the government’s conduct indicates that, if given time and space, that time and space will be utilized to pursue the agenda that the government has brazenly undertaken despite assurances to the contrary. That agenda entails the silencing of the democratic voice of the Tamil people, the entrenching of power at the centre and the transformation of the linguistic, cultural and religious composition of the North and East so as to negate the need for a political solution.

Sri Lanka’s failure to make good on its own assurances requires that the Council act now. The principle of complementarily in international law requires that where a state is unwilling or unable to institute credible measures to advance justice in keeping with its commitments, international mechanisms must be activated.

The failure of the Council to act will enable governments, which in fact demonstrate no commitment to change, to escape their obligations by merely making empty promises of reform. This will entrench a dangerous and harmful precedent of Council sanctioned impunity.

https://countercurrents.org/2019/06/demand-for-a-political-solution-to-the-tamils-in-the-north-and-east-of-sri-lanka?fbclid=IwAR3iVds3iiBlU7-ftdQ5DwFkx7tVU1H8t-e9R5MKJqLumcnRF5ktK2DNLoE

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Welikada Massacre

 
Karikalan-S.-Navaratnam.jpg?resize=150%2

Karikalan S. Navaratnam

Governments need to have both shepherds and butchers” ~ Voltaire

36th anniversary has just passed by. The prison carnage was a  bloody chapter necessarily complementing the horrors of ‘Black July narrative. Sadly, ‘1983 Welikada  Massacre featuring the butchery of Tamil prisoners has sunk into oblivion. In  ethno-political discourses, the prison riots of  2012  have supplanted  the  1983  massacre. 

I was associated as a Junior, with Senior lawyer Mr.M. Sivasithamparam (Siva), representing a number of these prisoners in Colombo High Court cases, filed under the Prevention of Terrorism  Act (PTA). Of course, their dreams and sacrifices merit more than just sharing mournful memories. I have, per force, revisited herein some of my experiences as I had recounted previously in the Colombo Telegraph columns, touching on Welikada killings. 

25th & 27th July 1983

In all,  53 Tamil prisoners were massacred, back to back, on both days. Out of the 73 Tamil political prisoners held at Welikade, only 20 survived. It was a joint venture planned and executed by Sinhala prison officers and hardcore criminals/convicts with the support of security forces. Before being shifted to Welikada jail, all of them were detained at Panagoda  Army Camp under the PTA. Armed with the pernicious provisions of the PTA, army/police officers had routinely subjected Tamil detainees to severe torture and degrading treatment, for two reasons: – to extract self-incriminating  “confessions” and to derive sadistic pleasure. 

Survivor David

Mr. S.A. David was one of the survivors of the Welikada Massacre. He and Dr. Rajasunderam were leading figures in Gandhiyam movement. David was an Architect by profession, qualified from Melbourne University and had served in Sri Lanka, Australia, UK, Nigeria and Kenya. ( He died in Oct. 2015, at 91 years). Dr. Rajasunderam was killed in the Welikada massacre. 

Mr. David’s  Detention, Torture and Murder”, published in Nov. 1983, (reproduced in JDS –Journalists for Democracy in Sri Lanka Report,  25 July 2013) would give glimpses of the maltreatment he and other detainees at Panagoda camp had endured. ( A few excerpts, for illustration) : 

Maltreatment 

After Dr. Rajasunderam was brought to the Panagoda camp, the attack on the Tamil detainees became very frequent and more vicious. Almost every other day and whenever he was in the mood, Commander Udugampola would come drunk with a glass of arrack in his hand and open the cells, strip the detenus and assault and kick and curse them. I could hear cries of pain and groans throughout the nights and early mornings and see naked colleagues hanging head down from high window bars. I saw naked detenus being chased around the courtyard and being assaulted and kicked by six to eight soldiers with PVC pipes and iron rods in their hands.” 

“One day Commander Udugampola came drunk and opened my cell, ordered me to strip and lie face down on a concrete bench. He ordered three soldiers to trample my back and legs and hit me on my buttocks. They left me exhausted on the bench.”

“In comparison to the torture meted out to the other detenus I must admit I was mildly treated. Dr. Rajasunderam was severely attacked, his left arm dislocated, his ear drums broken and left on several occasions unconscious on the floor……..One day Dr. Rajasunderam was ordered to walk on all fours hands and legs and bark like a dog…….”.

 Datainees beaten to death

“I heard from other colleagues, later at Welikade where I got a chance to talk to others, the detenus had been beaten to death at Kurunagar and Elephant Pass camps. Bottles, iron rods and  sticks have been driven into rectums, chilli powder smeared and smoke forced through nostrils and mouth, beaten with iron bars and iron pipes till bleeding, cut with broken bottles,  beaten and kicked unconscious, starved for days, forced to eat food with excess salt and kept chained to wall with hands  raised for months continuously. Some were in detention for over two hand a half years and undergone torture all these years.”

Devanandan

During the months leading to July 1983, I had appeared for Kathiravelu Devanandan  and his  two brothers in the Fort-Joint Magistrate Court. Devanandan was none other than the EPDP leader Douglas Devananda M.P.  He was later detained at Panagoda camp.  I  learnt  from other clients how he was treated at Panagoda: Stripped naked, he was surrounded by a dozen army men and was brutally beaten up with rifle butts and clubs – kicked about, trampled under their boots and was left  battered and bleeding. In army parlance, they called  it “softening up” a new arrival. 

It was incongruous that Douglas later became a partner of the racist regimes. Verily, he had valid reasons to be hostile towards LTTE . In their abortive attempts to eliminate Douglas, LTTE had even killed his brother. But then, I just could not come to terms with Douglas’ politics. 

Last visit to Welikada

On Saturday, 16 July 1983  morning I visited prisoners Thangathurai, Kuttimany and Jegan at Welikada prison.  While leaving them, I promised to see them again the week after next. But, that was not to be.

On Saturday, 23 July 1983, I was in Mannar to attend the TULF party Annual Convention. I was a Politburo member. The 1st day sessions were over and 2nd day sessions were scheduled for Sunday 24th. MPs  A.Amirthalingam, M.Sivasithamparam (Siva), V.Yogeswaran, R. Sampanthan, Neelan Tiruchelvam and  I were staying at Mannar Rest House. In the early hours of 24th, Jaffna MP  Yogeswaran’s wife called to convey a grim message – that a barrage of  explosions were heard the previous night and that army was running amok on a shooting  spree, killing civilians at sight. Follow-up calls from different sources, informed us that attacks on Tamil targets were spreading out. Due to menacing military movements we were compelled to cancel the Sunday sessions. (By the way,  on 25 July 1983 Siva’s house at Colombo-Norris Canal Road was looted and razed to the ground , and my house at Cotta Road, Borella was attacked by a mob led by a saffron-robed monk.).

Lawyer Manouri calls  

On 26 July morning some of us met at Mannar MP P. Soosaithasan’s residence. There was a call to Siva from lawyer Manouri Muttetuwegama (Communist M.P. Sarath’s wife and Dr.Colvin’s daughter). She informed Siva that some of his clients in Welikada jail had been killed, the previous day. She could not give details. Siva telephoned Acting Commissioner of Prisons Mr. Jansz who confirmed that there was “some bad news”, but politely declined to give details. Mr. Amirthalingam, who arrived there a bit later, telephoned President Jayawardene. JR confirmed that some Tamil prisoners were killed and added  that the names would be broadcast over the radio that night. 

Prisoners  butchered

As menacing army movements intensified, we moved out to the house of a party stalwart, V. Kayilayapillai in Iluppakadavai village. It was a spartan house. There was no electricity.  In the evening we all gathered in the frontyard, with a battery-operated radio, anxiously awaiting the broadcast. At 9.00 pm, names of 35 victims, including Kuttimany, Thangathurai and Jegan were announced. Government tried to make out it was a prison riot. Slaughter of further 18 prisoners on 27 July 1983  said it loud and clear that it was a pre-planned  operation, orchestrated by Sinhala officers with official blessings. 

Official complicity

They had served alcohol to hardcore criminals in the jail, armed them with machetes, kitchen knives, clubs etc, opened the cells for them and set them upon the Tamil prisoners.  In the two days of gory attacks, 53 Tamil prisoners were butchered to death and their bodies were piled up in front of a Buddha statue within the prison complex, maybe, as an offering to Lord Buddha. Army personnel on guard outside the jail had rushed to the spot; but continued to watch the “fun”.  Evidence revealed that some of the critically-injured victims were still alive, moaning and groaning, while being thrown into a truck, but were hacked down and killed. 

Massacre upon massacre

Coumnist Firoze Sameer’s write-up on Welikada carnage  (“That Massacre Upon Massacre”,  Sunday Times -27 July 2008 ), had laid bare the odious role of some officials in the massacre. (Excerpts):  

“Jailor Rogers Jayasekere, President JR Jayewardene’s supporter in Kelaniya, allegedly played from behind the scenes while the killings were in progress, while jailor Samitharatne alias Samitha Rathgama and location officer Palitha’s roles were apparently tenuous on that fateful day.”

“Lieut. Hathurusinghe would not allow the truck containing 35 bodies to leave the prison precincts for the Accident Service until he received approval from the top. Over the telephone, the major in charge of the unit told him that permission for such removal would have to be granted by the secretary to the Ministry of Defence”, who was Col. C. A. Dharmapala, who was present at the Security Council meeting at Army Headquarters, chaired by President JR Jayewardene.”

Suriya Wickremasinghe, civil rights activist  ( CP Leader  Dr. S. A. Wickremasinghe’s daughter), notes:  “… We know from eyewitnesses…… that the bodies were attacked again on the floor of the lobby to make sure they were dead. They were dragged into the compound and attacked there. They were thrown into the truck, and according to some eyewitness accounts, the sound of bodies being attacked even inside the truck could be heard. Indeed, according to one of our witnesses, one young prisoner (Kanapathipillai Mylvaganam, 19 years) who had succeeded in hiding, was actually killed in the compound by a jailor. 

Suriya Wickremasinghe noted that not a single prison officer was able to identify a single rioter, and that an identification parade was never held following both prison massacres.”

Call from ‘India House’ 

At Iluppakadavai, a messenger  from the local sub-post office showed up late in the night with an urgent  message for Mr. Amirthalingam: There was an important  telephone call waiting for him.Taking care not to alert the restive army, we avoided using the vehicle headlights and instead using a torch light, gingerly proceeded to the post office. The call was from ‘India  House’(High Commissioner’s residence) in Colombo. The caller at the other end was Indian Foreign Minister Mr. Narasimha  Rao. Mr. Rao wanted Amirthalingam to  travel  to India early for “consultation”. Evidently, feelings were running high  in Tamil Nadu and Prime Minister Indira  Gandhi had responded.  It was a watershed moment    that presaged the 30-year war.

Mr. Amirthalingam arrived in India in the 1st week of August  1983. As arranged, I left for India  before he did.  In Colombo, my good friend Vasantha  Obeyesekere (the film director, who is no more)  helped me at a moment of adversity and despair. On my way to Katunayake airport, I passed by the skeletal remains of burnt out houses, business places and charred remains of  hundreds of vehicles  strewn all over. Mercifully, I did not come across any human remains. Probably, they were already removed. Nonetheless, the cruel scenes, conjured up images of brutal attacks on hundreds of Tamils who were hacked to death or burnt alive.

Amnesty  International

During a visit to London in July 1984, I called at Amnesty  International (AI) Office and requested  them to press for an independent  inquiry into the Welikada Massacre. AI  officials  showed me a file with repeated requests addressed to President J.R. urging  for a probe.  AI did not  receive  even an acknowledgment  from the President’s  Office.

Conclusion

As regards 2012 Welikada prison riots, which erupted following a STF search for illegal arms, drugs, cellphones etc., there was an organized campaign and media outcry demanding  justice  for the victims – 27 prisoners killed and others injured on either side.  Pursuant  thereto, big guns were arrested and, lately, indictments have been filed against (Ex) Prison Commissioner  Lamahewage and  IP  Rangajeeva (per, Sunday Observer, 21 July 2019).  So far so good. Apropos 1983 “Welikada Massacre”,  53 Tamil prisoners were butchered . Media played  muffled drums. In Sri Lanka Tamil  lives are  dirt  cheap – and expendable !

https://www.colombotelegraph.com/index.php/welikada-massacre/?fbclid=IwAR1nIA-Mp4KoH9lQgPtedwLFQYY07C8HsVe_bI1ni_E-yg4yTV28-yWewwc

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Today marks the 42nd anniversary of the 1977 Anti-Tamil Pogroms. After decades of structural discrimination, Tamils began to demand the devolution of power to the provinces, or federalism. In 1976, the TULF adopted the Vaddukoddai Resolution, which called for a separate state known as “Tamil Eelam” (or Tamil homeland). After the 1977 elections, Tamil districts voted overwhelmingly for the TULF and its separatist platform. This fueled anti-Tamil violence under the newly elected UNP Government.

In August 1977, Sinhalese people attacked Tamils on the train from Jaffna to Colombo, through the country from Anuradhapura to Colombo, and in the Hill Country. False rumors about Tamil crimes against Sinhalese people fueled the violence. From August 12th to 20th, Sinhalese mobs killed approximately 300 Tamils and injured another 1,000. The violence displaced 25,000 Tamil people.

Following the violence, President Jayewardene inappropriately blamed the victims, saying that the separatist leanings of the Tamil people caused the pogrom. This led to further disenchantment with a political solution to the conflict and broad support for an armed resistance

Today, we honour the stolen Tamil lives and continue to call for justice.

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On this day, 13 years ago, the Sri Lankan Air Force dropped 16 bombs over the Sencholai children’s home, killing 53 school girls and 2 teachers, and seriously injuring at least 150 girls.

Sencholai was a designated safe-zone and the coordinates were shared with the Sri Lankan military by the UN children’s agency, UNICEF, and the ICRC.

Ann M. Veneman, UNICEF Executive Director, stated: "These children are innocent victims of violence".

The children were gathered at the home for a ten-day workshop on first aid and disaster management organized by the Mullaithivu and Kandavalai Principals Association. The bombings occurred on day four.

Mary Arulappan Juliet, a survivor of the attack, recalled the massacre stating: “I still have memories of the jets and the desperate calls of the girls for help. Earlier, I feared at nothing, but after witnessing this horrific massacre, even slight noises frighten me."

The Sri Lankan government originally denied responsibility for the massacre and then attempted to justify the bombings as an attack on a disguised training camp of the Liberation Tigers (LTTE).

Today we honour the lives of the young girls and teachers that were violently taken, acknowledge the gendered dimension of genocide, and continue to call for justice and accountability.

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Sinhala Only Act destroyed peaceful Sri Lanka: Prof. Rohan Gunaratna

Sri Lanka must have a Sedition Act or Maintenance of Religious Harmony Act to prevent people insulting other people, especially different ethnic groups, Prof. Rohan Gunaratna of the S. Rajaratnam School of International Studies, Nanyang Technology University, Singapore, said.

“Unfortunately, Sri Lankan leaders played ethnic and religious politics, seeded hatred and division and the country was dragged back 30 years,” he said.

Prof. Gunaratna, who is also the Head of the International Centre for Political Violence and Terrorism Research, is of the view that Singapore’s survival and prosperity could be attributed to the country’s harmonious coexistence between different groups of people.

“Without safety and security, the economy of a nation cannot grow. Sri Lanka went wrong mainly because of our short-sighted politicians, who played politics for their political and personal reasons,” he said, adding that the Sinhala Only Act, which was enacted during S.W.R.D. Bandaranaike’s government, had been absolutely unnecessary when all ethnic groups in Sri Lanka were living peacefully.

Prof. Gunaratna said that by introducing the Sinhala Only Act, Sri Lanka had achieved nothing and the legislation had only destroyed the country’s security and stability and precipitated a 30-year civil war.

http://www.ft.lk/opinion/Sinhala-Only-Act-destroyed-peaceful-Sri-Lanka--Prof--Rohan-Gunaratna/14-650183?fbclid=IwAR2vgN-VqgYeTPY28EXN-ucJCP0T4uvaH4FOaQPm0m-8gXVw1QI0a049y0U

 

குறிப்பு: தமிழீழ விடுதலை புலிகளின் தடைக்கு இந்த பேராசிரியர் கடுமையாக உழைத்தவர். 

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Chennai academic names 18 SL war criminals, indicts 1 Indian

Ramu Manivannan’s recently released book, ‘Sri Lanka: Hiding the Elephant,’ has named 18 top Sri Lankan nationals including President Mahinda Rajapaksa, Defence Secretary Gotabaya Rajapaksa, former commander of Sri Lankan army Sarath Fonseka, and External Affairs Minister G L Peiris as ‘War Criminals,’ and indicted two UN officials for their role during the last stages of the Sri Lankan civil war that concluded with the Mullaitheevu massacre of Tamils in May 2009.

indicted UN officials is an Indian, Vijay Nambiar. The book states: “Vijay Nambiar, the Chef de Cabinet from 2007 to 2012, was a key official in shaping UN’s Sri Lanka policy. He is widely accused of complicity in the ‘Whiteflag’ incident where several surrendees were executed by the Sri Lankan military after being given assurances of safety by international actors.”

Manivannan’s 976-page book, a comprehensive narrative on the genocidal war in Sri Lanka, has reproduced vital documents including the two important UN reports – Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, and Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka –the reports of Amnesty International, Human Rights Watch, International Crisis Group and the Tamil National Alliance.

An expert on Sri Lankan affairs, Manivannan is Professor and Chair at the Department of Politics and Public Administration, School of Politics and International Studies, University of Madras.

In the book, the author has made a solid case to back his argument that what happened in Sri Lanka was indeed genocide against the Tamils.

As Manivannan states: “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 attack 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.

According to the book, Gotabaya obtained his Masters Degree in Defence Studies from the University of Madras in 1983, after his Staff Course at the Defence Services Staff College, Wellington, India.

Manivannan states in the Preface: “We feel sad to record that Gotabaya Rajapaksa also walked through this distinguished University. He is now considered by the international society as a war criminal who deserves to be tried through an international mechanism among others accused of similar or more grave charges. We pray, without prejudice, that he meets his justice one day.”

Manivannan has published the book from his personal funds. They have printed 500 copies of the book, which is now available for sale.

The book is priced at Rs.2500 (inclusive of postal charges within India).

http://www.theweekendleader.com/Headlines/2206/chennai-academic-names-18-sl-war-criminals-indicts-1-indian-.html

 

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Sri Lanka’s Tamils Need Genocide Recognition and Innovative Justice Mechanisms

 

Tamil_Tiger_women_at_war.jpg
15.08.19 | 

[Anji Manivannan is the Legal Director at People for Equality and Relief in Lanka (PEARL) and a Senior Programs Officer at the World Federalist Movement – Institute for Global Policy (WFM-IGP).] 

Introduction

May 18th marked the tenth anniversary of the end of the 26-year-long armed conflict between the Government of Sri Lanka (GoSL) and the Liberation Tigers of Tamil Eelam (LTTE). The GoSL’s victory came with the deaths of 70,000–140,000 Tamil civilians in the Vanni region, largely due to the deliberate military shelling of GoSL-designated “No Fire Zones.” Although the LTTE committed human rights violations (albeit on a smaller scale), only the GoSL perpetrated abuses with the specific intent to destroy an ethnic group, also known as genocide. In the decade since, Tamil asks have not always taken a front seat in the international theater, where genocide recognition is scarce and impunity for atrocities remains common.

Victim-centric justice requires listening to the most-affected population. Therefore, in accordance with Tamil demands, I argue for the need for recognition and investigations of allegations of the GoSL’s genocide against the Tamil people and for an independent investigative mechanism to facilitate and expedite criminal justice proceedings. The first section of this article describes the Tamil perspective on genocide and the handling of genocide allegations by the 2015 report of the OHCHR Investigation on Sri Lanka (OISL). The second section presents a legal analysis of the GoSL’s specific intent and acts of genocide. I focus solely on the politically charged crime of genocide because the international community has generally accepted that the GoSL may have committed war crimes and crimes against humanity. Finally, the third section proposes the timely establishment of an independent investigative mechanism as an innovative reaction to domestic impunity in Sri Lanka.

 

International Community’s Treatment of Genocide Allegations

Tamils have advocated for their harms to be called genocide for years, making a concerted push in recent times. This year, several federal, provincial, and city-level Canadian politicians and British MPs joined in by labeling the atrocities genocide. International and cabinet-level policymakers, on the other hand, still refrain from using the “G-word” regarding the GoSL’s atrocities.

The dearth of findings and recommendations on genocide by OISL, the first independent, international human rights investigation into the atrocities on the island, may have effectively excused the international community from promoting critical discourse, let alone political recognition, of genocide. Genocide appears in the report’s section on applicable international criminal law, which defines the elements of genocide and outlines Sri Lanka’s legal obligations under the Genocide Convention. It is mentioned only once more when the report recommends the domestic criminalization of genocide. The report is silent on genocide allegations as well as investigations and prosecutions thereof. Its omission is unfortunate in light of the fact that 63 Tamil diaspora organizations, the Northern Provincial Council of Sri Lanka, and legal experts, academics, and organizations called on OISL to specifically investigate allegations of the GoSL’s genocide against the Tamil people.

The report neither justifies the exclusion of genocide allegations nor addresses the aforementioned pleas by affected Tamils, opening the investigation to criticism. Positively, in response to inquiries regarding OISL’s silence on genocide, OHCHR, including the UN High Commissioner for Human Rights, stressed that OISL’s findings do not necessarily signify the absence of genocide. The High Commissioner explained: “we didn’t have the full cooperation of the previous government, certainly, and not the cooperation of this government when it came to our investigation in the way that we wanted”; for example, OISL faced obstacles to gathering information, including “lack of access to Sri Lanka and witness protection concerns.” OHCHR therefore decided to delegate genocide determinations to criminal investigations that have yet to occur.

The disregard of Tamil demands and perspectives by policymakers and civil society is not new. During the military’s onslaught, Tamil sources provided updates that fell on deaf ears. For instance, it took years for international stakeholders to admit that the military killed tens of thousands of Tamil civilians, which Tamils on the ground had reported in real-time. While Tamils were identifying the GoSL’s atrocities as genocide against their people, international human rights organizations kept quiet, or actively rejected, even the risk of genocide (see, e.g., 42:19–45:00) despite UN guidance encouraging different actors to acknowledge when violations of international law may amount to genocide.

 

Evidence of the GoSL’s Genocide Against the Tamil People

Naysayers would do well to consider the legal analysis by independent legal experts determining that GoSL superiors and military commanders possessed the dolus specialis (specific intent) of genocide with which it committed acts of genocide. Under international criminal law, the specific intent of genocide is the intent “to destroy at least a substantial part of the protected group.” “A substantial part” refers to a part’s numeric size and proportion of the whole group and its significance, including the presence of the protected group’s leadership within that part (Krstić, Appeals Chamber, para. 12). Given the parallels between the fact patterns in Srebrenica and the Vanni, jurisprudence on the Srebrenica genocide is an excellent starting point for proving the GoSL’s intent.

  • Numeric size and proportion: Bosnian Muslims in Srebrenica were only a small part of the Muslim population in Bosnia and Herzegovina. By contrast, the 360,000 Tamils in the Vanni constituted 18% of the 2 million Tamils in Sri Lanka.
  • Significance: The elimination of the Tamils in the Vanni was of “immense strategic importance” because their existence in the Vanni joined the Northern and Eastern Provinces into a contiguous de facto state of Tamil Eelam, which the GoSL sought to dismantle (see Krstić, para. 15).
  • Presence of leadership: The Vanni was home to Tamil Eelam’s political, administrative, judicial, law enforcement, and financial branches. It was also the last stronghold of the LTTE, who governed Tamil Eelam and whose own leadership was killed by the military’s final offensive (Jelisić, Trial Chamber, para. 82).

With the aforementioned specific intent, GoSL superiors and military commanders perpetrated three acts of genocide during the final phase of the armed conflict.

  • Killing: The GoSL encouraged Tamil civilians in the Vanni to relocate to the “No Fire Zones” that were then shelled by the military. This intentional shelling of the UN hub, hospitals (sometimes multiple times), food distribution lines, and areas near humanitarian organization ships were largely responsible for killing 70,000–140,000 Tamil civilians.
  • Deliberately inflicting conditions of life to bring about the group’s physical destruction: The GoSL purposefully understated the number of Tamil civilians in the Vanni to limit necessary food, surgical, and other medical supplies going into that area and to facilitate the deaths of survivors. Military shelling systematically displaced at least 300,000 Tamils in the Vanni, sometimes multiple times (see ICC Elements of Crimes, Art. 6(c)(4), fn. 4).

Ideally, such legal examinations would have advanced greater political recognition of genocide against the Tamil people or, at the very least, critical engagement on the question of genocide. Instead, international stakeholders have avoided these discussions, neglecting the views of Tamils and exacerbating their hopelessness and frustrations by supporting the GoSL’s failing transitional justice process under UN Human Rights Council Resolution 30/1 (2015).

 

Creative Responses to Impunity: The Independent Investigative Mechanism

On the heels of OISL’s report, the GoSL cosponsored Resolution 30/1, agreeing to fulfill 25 key commitments, including creating a judicial mechanism involving foreign judges, lawyers, and investigators. The UN Human Rights Council adopted Resolutions 34/1 (2017) and 40/1 (2019) to give the GoSL more time, but what it needs is political will. Following the passage of Resolution 30/1, the GoSL rejected its promises about justice, namely the participation of foreign judges and the prosecution of individuals it deems “war heroes.” The most recent progress report of the UN High Commissioner for Human Rights was damning: “Sri Lanka has failed to seize the opportunity provided by the Human Rights Council” to achieve criminal accountability. Therefore, international actors have increasingly accepted the need for alternative, complementary avenues to justice, such as the use of universal jurisdiction and “some forms of international investigation and prosecution” as recommended by the High Commissioner. It should be remembered that Tamils expressed concerns about the GoSL’s inability to implement confidence-building measures on the justice issue within a matter of months after the adoption of Resolution 30/1.

Since international and Tamil perspectives may be aligning more and more regarding the GoSL’s failures and the need to innovate, the time is ripe to address Tamil demands. Creative responses to impunity following (non-criminal) findings of human rights violations have recently emerged in the form of independent investigative mechanisms to collect, consolidate, preserve, and analyze evidence and to prepare files in order to facilitate and expedite criminal justice proceedings as and when they occur. At the end of 2016, the UN General Assembly established the International, Impartial, and Independent Mechanism to assist in investigating and prosecuting perpetrators of atrocities committed in Syria. Last year, the UN Human Rights Council set up the Ongoing Independent Mechanism to perform similar functions concerning Myanmar.

There is already considerable civil society documentation regarding the individual criminal responsibility of GoSL superiors and military commanders (e.g., dossier on Shavendra Silva; dossier on Jagath Dias), several of whom have been subjected to legal action. U.S. lawsuits were filed against Shavendra Silva (dismissed in 2012 on diplomatic immunity grounds because he was a deputy UN ambassador at the time) and former defense secretary Gotabaya Rajapaksa (ongoing since April). A war crimes case under universal jurisdiction was filed against Jagath Jayasuriya, an ambassador at the time (filed in August 2017, after which Jayasuriya immediately fled to Sri Lanka). In other words, an independent investigative mechanism covering Sri Lanka could readily secure civil society cooperation and information as the foundation for constructing trial-ready files. Any evidence that supports a legal finding of genocide could be used to promote legal determinations in courts of law as well as increase political recognition by UN, lower- and cabinet-level state, and civil society actors in accordance with Tamil demands.

Tamils have finished their tenth year without a modicum of justice as a result of not only the GoSL’s lack of political will, but also an international reluctance to adequately prioritize Tamil asks and perspectives. Although the UN system acted relatively quickly to innovate the independent investigative mechanism model in Syria and then in Myanmar, it has yet to afford the same consideration to the Tamil people it systemically failed over a decade ago. Since time is the enemy of evidence-gathering, international legal experts and Tamil activists are urgently calling for the establishment of an independent investigative mechanism before physical evidence is destroyed and victims forget or die. At this juncture, the international community should adopt a truly victim-centric approach by listening to Tamils and authorizing an independent investigative mechanism to ensure the eventual delivery of justice and accurate naming of their harms suffered.

http://opiniojuris.org/2019/08/15/emerging-voices-sri-lankas-tamils-need-genocide-recognition-and-innovative-justice-mechanisms/?fbclid=IwAR2t4gRygv846J7lG1HKuz8cxpdygaVvw-qro35skg8RN5Jwqn-rPB8SBTA

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