By Laksiri Fernando –

Dr. Laksiri Fernando

There have been two disturbing developments this month in respect of the accountability issues and the process of justice in Sri Lanka. The first came from the self-made ‘Transnational Government of Tamil Eelam’ (TGTE) on 8 December 2013, during an assembly held in New Jersey, calling for an international inquiry against the Government of Sri Lanka on the alleged ‘genocide and crimes against humanity’ in respect of the Eelam Tamils and not on ‘human rights violations or war crimes.’ The accusation of genocide is farfetched.

Of course the call was made to the UN Security Council and not to a people’s tribunal or any such thing. But within two days, in Bremen, Germany, on 10 December 2013, an outfit called the ‘Permanent Peoples Tribunal on Sri Lanka’ (PPTSL) delivered a verdict declaring that the government of Sri Lanka was found guilty without any reasonable doubt for ‘systematic acts of genocide and crimes against humanity’ in addition to many other human rights violations. It is possible that the two events were coincidental and not connected. But they signify what kind of extremist or ‘ultra-left’ agitations or claims that could derail the genuine claims and pursuits in respect of accountability and investigation of alleged war crimes in Sri Lanka.

PPTSL ‘Verdict’

According to its own website, the PPTSL or its harbinger, International Human Rights Association, Bremen, had been in existence since June 2009. It explained how it started. “It was an emotional meeting. The members of the initiatives from Germany and Ireland consisted mainly of European and exile-Sinhalese activists.” It further explained the ideological genesis of the organization as follows.

“As we had worked strenuously for the peace process in Sri Lanka to yield results, we were all devastated. Having failed dismally to convince the powers that be in Europe to maintain their original position of promoting peace in Sri Lanka, we all felt that we had failed in our responsibility to the Tamil people.”

It is one thing to feel ‘guilty’ or ‘responsible’ for the Tamil people. But it is completely another matter to come to rash conclusions about the ‘failed peace process’ or the position of the ‘powers that be in Europe’ about the situation in Sri Lanka under the activities of the LTTE. It is grossly irresponsible and grotesque if one’s ideological positions are to be put forward as a ‘verdict of a people’s tribunal.’

As far as I am aware, the full text of the so-called people’s tribunal or an explanation of the procedure through which that tribunal has arrived at decisions is not yet published. When it is revealed, the ‘procedure’ may remind us some of the ‘kangaroo courts’ conducted by some of the insurrectionists in 1971 in Sri Lanka. I am just predicting. The procedure or due process is important in a backdrop where we strenuously discuss the ‘due process’ and the ‘kangaroo procedure’ that was followed by the government in impeaching the former and the legitimate Chief Justice in Sri Lanka.

However, the key conclusion that had been arrived at as quoted by Tisaranee Gunasekara in her “From Mutur to Geneva” (CT, 12 December 2013) is “Colombo is guilty of ‘crimes of genocide’ against the Tamils and that ‘both the United States of America and United Kingdom were complicit in the genocide while the involvement of India warranted further investigation.”

According to this conclusion, the TGTE or any other who pursues the struggle against ‘genocide’ should ask the Security Council or at least the Human Rights Council to recommend or initiate proceedings against not only Sri Lanka but also against the USA and UK if not India, of course keeping in mind the difference between the ‘guilt’ in the case of Colombo and ‘complicity’ in the case of Washington and London. I frankly found the conclusions to be hilarious and tragic; tragic given the gravity of the matters that we are dealing with.

It is interesting to note that those who initiated the PPTSL have very clearly distanced themselves from calling for ‘war crime’ investigations or investigations on human rights violations. The reason is because, as they say, “those powers that were most to blame for promoting the military solution and practically aiding the Sri Lanka regime are now in the process of taking up the issue of war crimes as a lever to pressurise the Sri Lankan state to conform to their geo-strategic interests in the region.”

It is possible that Sri Lankan government might be the most happy to see this assertion which invariably confirms its position that the Western pressure on Sri Lanka is tainted with hypocrisy and based on ‘geo-strategic interests’ in the region. Then the readers will find it difficult to understand the PPTSL’s grumble against the government and what they call ‘genocide.’ It is not something bordering on genocide that they talk about, but genocide proper. Of course it could mean the ‘civilian deaths,’ but that is covered by ‘war crimes’ or accountability. Then what is left at least as far as the last stages of the war are concerned is the ‘annihilation’ of the LTTE. This is perhaps their main grumble as they have tried their best for the Western nations to intervene, without success, at the last stages of the war. This is what is revealed in their website although exaggerated. They also claim, and the verdict is also that ‘genocide’ preceded the war to mean that the LTTE and even their methods were legitimate.

As far as I am concerned, the Western pressure, not international intervention, by and large is logical and consistent with the policies and the strategies that both those countries and even the government of Sri Lanka pursued in suppressing the LTTE. There was no other alternative available by the time when the LTTE started its Eelam War IV. The peace process was fundamentally flawed giving rise to that situation. However, after the war, the accountability issues had to be addressed and all war crime and human rights violation charges should have been and should be investigated.

To me the efforts like the PPTSL are like giving Dirachcha Lanu (tatty ropes) to the Tamil people. This has happened from some ultra-left or self-proclaimed sections of the Sinhala community before and this is happening even today.

TGTE Resolution

The TGTE or its recent resolution is a different matter altogether. At least they are consistent with what they believe in although in my opinion the resolution is completely unrealistic, partial or out of tune. It is titled as a “Resolution of a Plan of Action” of an “Assembly of Persons Concerned with the Genocide of the People of Tamil Eelam by the Government of Sri Lanka.” In this respect it suffers from the same defect of the PPTSL focusing mainly or solely on what is claimed as genocide in addition to distancing the Tamil people from the rest of the population as ‘people of the Tamil Eelam.’

The resolution has 16 clauses. It is not merely the government of Sri Lanka which is blamed, but more clearly ‘its armed forces and its political leaders.’ There is no reference, obviously, to the LTTE or any possible crimes or violations committed by them. The Clause 1 refers to an ‘accountability mechanism’ that should be established again only on the issues of ‘genocide’ and ‘crimes against humanity.’ It is also in this connection that Clause 2 refers to the legal possibility of the UN Secretary General establishing a ‘Commission of Inquiry,’ but the eventuality is quite unlikely unless there is an agreement in the Security Council, whatever the validity of the claimed legal possibility.

There are valid claims against the ‘unaccounted Tamils’ taken into custody and the ‘continued occupation of land owned by the Tamils’ in Causes 3 and 4. Even the claimed continuity of ‘genocide’ in this respect is referred to as the ‘destruction of identity’ and ‘intimidation into subjugation’ which any government should be sensitive to or responsible for. There are demands made in respect of army withdrawal in Clause 4 and further demands and/or claims are made in respect of land transfer, compensation and necessary legal action against the (army) personnel responsible for such action, in ‘countries of Tamil Diaspora,’ whether that proceedings could materialize or not.

Most importantly, there are grave concerns expressed in respect of ‘war widows’ and women in general in Clause 10. Since the Northern Provincial Council (NPC) is now established, there is the possibility of a mechanism set up jointly between the NPC, the Ministry of Women’s Affairs and the Human Rights Commission with the assistance of the UN.

All in all, Clause 13 is the most important as a resolution on a Plan of Action. It requests “that the United Nations Security Council refer the high level political and military leaders of Sri Lanka to the International Criminal Court for prosecution.” This is however on the charges of, nothing but, ‘genocide.’ Admittedly, this is a long shot. That is why the same clause says that “If that does not prove feasible, we request that the United Nations General Assembly establish an International Criminal Tribunal for Sri Lanka pursuant to its power under Article 22 of the United Nations Charter that is modelled upon the International Criminal Tribunal for Rwanda.”

It should be noted, at this stage, that the ICTR was constituted immediately after the events in Rwanda in November 1994 as the events were very clear as genocide. In the case of Sri Lanka, the UN Secretary General visited the country immediately after the end of the war and that was not the perception or impression he expressed. An ‘accountability mechanism,’ even the TGTE resolution refers to in Clause 1, and an ‘international criminal tribunal’ on genocide are two different things altogether.

ICC and People’s Tribunals   

In my opinion, even without going through the Security Council or the General Assembly, there are, or may be, possibilities of initiating proceedings before the International Criminal Court (ICC), under Article 15 of the Rome Statute going through the Prosecutor. While this has not yet been invoked or attempted before, to my knowledge, the case or the information before the Prosecutor should also be well grounded, legally and in all other respects. It is difficult to imagine that the legal luminaries of the TGTE are unaware of these possibilities. Why then they are prevented from doing so?

Apart from the ‘genocide’ charge being unfounded, there are other implications of going before the ICC by anybody who wants to defend the LTTE or accuse only the Sri Lankan government. That is the issue of Terrorism, apart from many activities of the LTTE being war crimes or crimes against humanity. During the proceedings leading to the formation of the ICC and its Statute, the issue of terrorism figured very prominently and debated vehemently. This was well before the 9/11. In the 1988 draft of the ICC, terrorism was listed as a crime that should be covered by the court, but left out finally as a ‘crime on its own standing,’ the states finding it difficult to agree upon a common definition. Nevertheless, there is considerable opinion that a primary role of the ICC is to combat terrorism and terrorism is closely linked to many crimes defined by the Statute.

There are some merits of People’s Tribunals or Citizen’s Tribunals, when they are fairly and independently conducted, in conditions under which justice is derailed or impaired. But those have never been used as pressure groups in achieving one sided results. There have been over 80 tribunals so far outside the state or international structures. However, when such tribunals are purely formed as ‘opinion tribunals’ and that is unfortunately the case in respect of the PPTSL, as revealed by the report published by Yahapalanaya Lanka (Goodgovernance Lanka, CT Sinhala, 12 December 2013), they invariably polarize societies and create conditions for further conflicts and injustice rather than justice.

Conclusion  

Both the TGTE resolution and the PPTSL’s so-called ‘verdict’ do not call for a solution like in South Africa or along the main lines of a Truth and Reconciliation Commission with of course clear prosecutions of gross violators. They call for extreme demands of prosecution of ‘genocide’ without any foundation. Their accusations are only of the government but not of the LTTE. On the other hand, the government and its supporters only accuse the LTTE. It is correct that ‘truth and reconciliation’ is difficult or rather impossible under the present government as it is. That is where the international pressure, not intervention, is necessary. That could come only from the West and India and it should come only in a constructive manner. Otherwise the external pressure also could derail the process. The process of justice should be on a level playing field. Any procedure to investigate any violation, whether international, national or peoples should follow the internationally established due process and impartiality and independence from political machinations of all sides.